Muthulakshmi vs Sellammal
2022 Latest Caselaw 1900 Mad

                                                                                        SA.No.64/2022


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED : 07.02.2022

                                                         CORAM:

                                   THE HONOURABLE MR.JUSTICE S.S.SUNDAR

                                        SA.No.64/2022 and CMP.No.1297/2022

                                                       [Virtual Mode]

                    1.Muthulakshmi
                    2.Shakila
                    3.Sangeetha
                    4.Ranjitha                                          .. Defendants/Appellants

                                                            Vs.


                    1.Sellammal
                    2.Saraswathi                                      .. Plaintiffs/Respondents1&2
                    3.Kandhasamy Gounder                              .. 1st Defendant/3rd Respondent

                    Prayer:- Second Appeal filed under Section 100 of CPC to allow this
                    Second Appeal and set aside the judgment and Decree dated 12.02.2020
                    made in AS.No.9/2019 on the file of the learned Additional District Judge
                    at Namakkal confirming the judgment and decree dated 01.12.2018 made
                    in O.S.No.232/2012 on the file of the learned Additional Subordinate
                    Court at Namakkal.

                                      For Appellants              :   Mr.T.L.Thirumalaisamy



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                                                                                           SA.No.64/2022


                                                        JUDGMENT

(1) This Second Appeal is preferred by defendants 2 to 5 in the Suit in

O.S.No.232/2012 on the file of the learned Additional District Judge

at Namakkal.

(2) Respondents 1 and 2 in this Appeal, as the plaintiffs, filed the Suit in

O.S.No.232/2012, for partition of their 2/4th share in all the Suit

properties and for declaration that the Sale Deed executed by the 1st

defendant in favour of the 2nd defendant in respect of their 2/4th share

is void and not binding on plaintiffs and also for permanent

injunction restraining the defendants from alienating or encumbering

the Suit properties in respect of half share of the plaintiffs.

(3) The Suit was decreed by the Trial Court, except the relief for

injunction. Aggrieved by the same, the appellants preferred the

Appeal in AS.No.9/2019 before the learned Additional District

Judge at Namakkal. The plaintiffs also preferred an Appeal in

AS.No.91/2019 against the disallowed portion.

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(4) The Trial Court dismissed the Appeal preferred by the appellants

and allowed the Appeal in AS.No.91/2019 filed by the plaintiffs by

granting a decree for permanent injunction. Aggrieved by the same,

the above Second Appeal is filed by defendants 2 to 5 in the Suit.

(5) The Suit properties are admittedly the Joint Family Properties of the

1st defendant to be shared with the plaintiffs and other defendants.

The relationship is not in dispute. The plaintiffs are the daughters of

the 1st defendant. 2nd defendant is the daughter in law of the 1st

defendant, being the wife of the deceased son of 1 st defendant by

name Kathirvel.

(6) The defendants 3 and 4 are the children of the deceased, Kathirvel

through the 2nd defendant. The Suit properties are allotted to the 1st

defendant in a family partition that was held on 07.07.1980 under

Ex.A1. The husband of the 2nd defendant died about two years prior

to the Suit for partition. The plaintiffs claimed equal right as that of

the son by describing the properties as the Joint Family Properties

by virtue of the Hindu Succession Amendment Act, namely, Act

39/2005 by which the daughter was held to be entitled for equal

share as that of other co parceners in the Joint Family Property.

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(7) The facts are not in dispute. However, the Suit was contested mainly

on the ground that the Suit properties were alienated by the 1st

defendant in favour of the 2nd defendant who discharged the debts of

the 1nd defendant. Referring to the recitals in the Sale Deed, it was

contended that the 2nd defendant who had discharged the debts of the

1st defendant, is entitled to obtain the Sale Deed in respect of the

entire Suit properties.

(8) The Trial Court found that the Sale Deed executed by the 1st

defendant in favour of the 2nd defendant under Ex.A2 dated

24.11.2010 is not valid as the 1st defendant has no right to deal with

the Joint Family Properties. Though it was held that the Sale Deed is

valid to the extent of 1/4th share that belonged to the father, it was

held that the Sale Deed which is valid only in respect of the 1/4th

share of the father cannot take away the right of the plaintiffs to

claim one half share.

(9) It is true that the Trial Court based on the recitals under Ex.B1 dated

24.11.2010 has acknowledged the statement that the 2nd defendant

had discharged the loans obtained by the 1st defendant as the

document under Ex.B1 refers to the discharge of loans obtained by

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the 1st defendant. It is to be seen that the 2nd appellant did not deny

the character of the Suit property. Though the 1st defendant is

entitled to deal with his share in the Joint Family Properties he has

no power to deal with the properties in entirety.

(10) The Trial Court dismissed the relief of injunction on the ground of

non payment of proper Court fee. The Lower Appellate Court also

dismissed the Appeal filed by the defendants specifically holding

that the findings of the Trial Court with regard to the character of the

Suit properties as ancestral properties of 1st defendant and his

children including plaintiffs by virtue of amendment of Section 6 of

the Hindu Succession Act cannot be assailed. The Lower Appellate

Court also found that the Sale Deed executed by the 1st defendant is

not valid in respect of half share to which the daughters are entitled

to. Further, the Lower Appellate Court observed that the plaintiffs

cannot be saddled with any liability under pious obligation after the

amendment under Act 39 of 2005.

(11) Learned counsel appearing for the appellants submitted that the Sale

Deed under Ex.B1 in respect of the Suit properties is for

consideration paid by 2nd defendant for discharging the loan

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obtained by the 1st defendant. Learned counsel then submitted that

the father/1st defendant has sold the properties for discharging the

loan obtained by him. Hence, the daughters who have an obligation

to discharge the loan cannot challenge the sale of properties in

favour of the 2nd defendant. The Lower Appellate Court held that the

doctrine of pious obligation cannot be applied.

(12) When a father in a Joint Family contract debts even for his own

benefit, which were not for any illegal or immoral purposes, the

sons are liable to pay the debts under pious obligation. The doctrine

of pious obligation is recognized as a religious obligation under the

Hindu Law (Mitakshara School). The sons as members of the

coparcenery are bound to pay the debts incurred by their father to

the extent of their interest in the coparcenery properties. This Court

in several precedents has also held that the liability of the son is not

personal and the creditor of father is not entitled to proceed against

their separate property. It is to be noted that pious obligation of sons

to pay the personal debts of their father to the extent of their interest

in the Joint Family Property has not been taken away by the Hindu

Succession Act, 1956. However, by virtue of the Hindu Succession

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(Amendment) Act, 2005, the right of creditor to proceed against the

son in respect of the debts incrured by the father after the

commencement of the Hindu Succession (Amendment) Act, 2005 is

taken away.

(13) Section 6 of the Hindu Succession Act after amendment is extracted

below for convenience:-

''6. Devolution of interest in coparcenary property.

(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005), in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,

(a) by birth become a coparcener in her own right the same manner as the son;

(b) have the same rights in the coparcenery property as she would have had if she had been a son;

(c) be subject to the same liabilities in respect of the said coparcenery property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:

Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.

(2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary

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ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force, as property capable of being disposed of by her by testamentary disposition.

(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005), his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenery property shall be deemed to have been divided as if a partition had taken place and,

(a) the daughter is allotted the same share as is allotted to a son;

(b) the share of the pre-deceased son or a pre- deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and

(c) the share of the pre-deceased child of a pre- deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be.

Explanation.--For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.

(4) After the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005), no

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court shall recognise any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great- grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt:

Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005), nothing contained in this sub-section shall affect

(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or

(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 (39 of 2005) had not been enacted.

Explanation--For the purposes of clause (a), the expression son, grandson or great-grandson shall be deemed to refer to the son, grandson or great- grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005).

(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004.

Explanation.--For the purposes of this section partition means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition

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effected by a decree of a court.''

(14) Applying the doctrine of pious obligation which is recognised under

Hindu Law, the daughters are not liable to discharge the debts of

father out of the property inherited from their father. Under proviso

to section 6(4), it is seen that the right of creditor to proceed against

the son, grandson or great-grandson alone is recognised in respect of

debts contracted before the commencement of the Hindu Succession

(Amendment) Act, 2005. Though the daughters are enabled to claim

equal share as other coparceners, they are not allowed to share the

debts of father out of their interest in Joint Family by express

language. There is discrimination by giving an advantage to female

heirs in 2005, going by the express language excluding daughter in

Clause (b) to the first proviso to subsection of 4 of Section 6.

However, in appropriate case, this provision may be interpreted by

the Hon'ble Supreme Court to remove this discrimination.

(15) However, a Three Member Bench of the Hon'ble Supreme Court in a

recent judgment in Vineeta Sharma Vs. Rakeh Sharma and Others

reported in AIR 2020 SC 3717 : 2020 [5] CTC 302, has observed as

follows in paragraph No.61:-

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''61.With respect to a Hindu who dies after the commencement of the Amendment Act, 2005, as provided in Section 6[3] his interest shall pass by testamentary or intestate succession and not by survivorship, and there is a deemed partition of the coparcenery property in order to ascertain the shares which would have been allotted to his heirs had there been a partition. The daughter is to be allotted the same share as a son ; even surviving child of pre- deceased daughter or son are given a share in case child has also died then surviving child of such pre- deceased child of a pre-deceased son or pre-deceased daughter would be allotted the same share had they been alive at the time of deemed partition. Thus, there is a sea-change in substituted section 6. In case of death of coparcener after 09.09.2005, succession is not by survivorship but in accordance with Section 6[3][1]. The Explanation to Section 6[3] is the same as Explanation I to Section 6 as originally enacted. Section 6[4] makes a daughter liable in the same manner as that of a son. The daughter, grand- daughter or great grand-daughter, as the case may be, is equally bound to follow the pious obligation under the Hindu Law to discharge any debt. The proviso saves the right of the creditor with respect to

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the debt contracted before commencement of the Amendment Act, 2005. The provisions contained in Section 6[4] also make it clear that provisions of Section 6 are not retrospective as the rights and liabilities are both from the commencement of the Amendment Act.'' (16) Though this Court has no difficulty in following the decision, if a

question is raised whether Section 6[4] makes a daughter liable as

that of a son under pious obligation, the express language employed

does not include daughters. The issue regarding pious obligation of

daughter was not raised before Hon'ble Supreme Court. Hence, this

Court has some reluctance to restate this observation as law laid

down by the Hon'ble Supreme Court. In this case, this Court need

not go further as the debts of father alleged are all after 2008. In the

plaint itself the recitals of the Sale Deed in favour of 2nd defendant

under Ex.B1 about the debts incurred by father are indicated. The

documents refers to four independent transactions stating that on

14.06.2008, on 02.03.2008, on 22.09.2009 and on 09.03.2010, the

father had borrowed money and that the 2nd defendant had

discharged the loans with interest by paying a sum of

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Rs.3,91,227.50p. Hence, there is no liability under the doctrine of

pious obligation, in view of 2005 amendment.

(17) It is only stated that the 1st defendant has sold the properties in

favour of the 2nd defendant who had discharged the loan obtained by

her father-in-law. The alienation as such cannot be saved by

pleading pious obligation, as the debts were incurred by father after

2008. Therefore, this Court is unable to appreciate the arguments of

the learned counsel appearing for the appellants.

(18) Learned counsel then submitted that the plaintiff during the course

of evidence has admitted the alienation in favour of some third

parties in respect of a few Joint Family properties comprised in

S.Nos.450 and 451 in the same village in which the other properties

are also located. The case developed by the learned counsel

appearing for the appellants in due course of his argument is that the

plaintiffs has admitted prior alienations in respect of a few Joint

Family Properties in the course of evidence and therefore, she

cannot maintain a suit for partition only in respect of suit properties.

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(19) In other words, it is suggested by the learned counsel appearing for

the appellants that the Suit is bad for partial partition. It is admitted

that several properties were allotted to 1st defendant under Ex.A1

including some of the properties in Survey Nos.450 and 451.

However those properties are not available for partition as the

alienations are not challenged. Only if certain properties in the

family which are also proved to be available for partition are left in

the suit for partition, there can be a defence that the suit is bad for

partial partition.

(20) Therefore, the submission of the learned counsel appearing for the

appellants has no legal basis to deny the lawful share to the

plaintiffs. It is not in dispute that the properties are Joint Family

Properties and that the daughters are entitled to equal share in the

Joint Family Properties as they have not been divided by way of a

registered partition before the Amendment Act in 2005.

(21) None of the grounds raised/argued by the learned counsel appearing

for the appellants has any legal basis. Since the substantial questions

of law raised by the learned counsel for the appellant have no

substance, this Court is unable to entertain the Appeal. As a result,

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the Second Appeal is dismissed confirming the judgment and decree

dated 01.12.2018 made in O.S.No.232/2012 passed by the learned

Additional Subordinate Court at Namakkal. No Costs. Consequently

connected Civil Miscellaneous Petition is closed.

07.02.2022 cda Internet : Yes

To

1.The Additional District Court, Namakkal.

2.The Additional Subordinate Court at Namakkal.

3.The Section Officer VR Section, High Court Chennai.

S.S.SUNDAR, J.,

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cda

SA.No.64/2022

07.02.2022

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