Annakodi vs A.Natarajan
2022 Latest Caselaw 2100 Mad

                                                                              S.A.No.472 of 2012

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED : 09.02.2022

                                                       CORAM

                             THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH

                                                S.A.No.472 of 2012
                                               and M.P.No.1 of 2012

                Annakodi                                                           ...Appellant

                                                        Vs.

                1.A.Natarajan
                2.C.Kolandayammal
                3.A.Chenniyappa gounder
                4.M.Sumathi @ Gunasundari
                5.D.Gomathi
                6.C.Saminathan                                                 ...Respondents


                PRAYER: Second Appeal filed under Section 100 of C.P.C., against the

                judgment and decree passed in A.S.No.54 of 2011 by the Ist Additional Sub

                Judge, Erode dated 05.01.2012 confirming the judgment and decree passed

                by the II Additional District Munsif of Erode in O.S.No.543 of 2008, dated

                31.03.2011.

                                       For Appellant   : Mr.V.S.Kesavan

                                       For Respondents : Mr.s.Mukunth for
                                                         M/s.Sarvabhauvman Associates for R1

                                                        R2 – Died

                                                        R3 to R6 Notice Served No appearance


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                                                                                   S.A.No.472 of 2012




                                                     JUDGMENT

The plaintiff is the appellant in this second appeal. The appellant filed

a suit for partition claiming for 1/3 share in the suit property on the ground

that the suit property along with other properties originally belonged to one

Perianna gounder and that his five sons under registered Partition Deed

dated 04.09.1958, marked as EX.A1, divided the property among

themselves and one Arumuga gounder was allotted "E" Schedule property.

The further case of the appellant is that the said Arumuga gounder is none

other than the father of the plaintiff and defendants 1 and 2 who are the

brother and sister of the plaintiff. It is further stated that the said Arumuga

gounder died intestate on 18.01.2008 leaving behind the plaintiff and the

1st and 2nd defendants. The appellant sought for the division of the property

and for allotment of her share in the property. However, the 1st defendant

did not agree to such a partition and left with no other option, the appellant

proceeded to file the suit seeking for the relief of partition.

2.The 1st defendant who is the brother of the appellant filed a written

statement to the effect that the appellant had married in the year 1977

itself and the suit property was jointly enjoyed by the 1st defendant and his

father and there was a notional partition that took place between the 1st

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defendant and his father and each became entitled to half share in the suit

property. The further case of the 1st defendant is that his father executed a

registered Settlement Deed dated 13.02.2006, marked as Ex.B1 and settled

his half share in favour of the 1st defendant. The 1st defendant has

therefore, claimed an absolute right over the suit property and has taken a

stand that the appellant is not entitled for any share in the suit property.

3.Both the Courts below after considering the facts and circumstances

of the case and on appreciating the oral and documentary evidence, came

to a conclusion that there was a notional partition between the 1st

defendant and his father and thereby, half share in the property absolutely

vested with the father of the 1st defendant and this was settled in favour of

the 1st defendant. As a result, both the Courts held that the 1st defendant is

the absolute owner of the suit property and the appellant is not entitled for

any share in the property. Aggrieved by the same, the plaintiff has filed the

present second appeal.

4.This Court framed the following substantial question of law:

Where it is an admitted case that the property in question is in

the nature of a joint family property, whether both the Courts

below were right in denying a share in the property to the

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plaintiff by virtue of the right derived from the Hindu Succession

(Amendment) Act, 2005 which enabled the daughter to become

a coparcenar in her own right in the same manner as the son?

5.Heard the learned counsel for the appellant and the learned counsel

appearing on behalf of the respondents. The 2 nd defendant died even during

the pendency of the suit and her legal representatives have been brought

on record and they are respondents 3 to 6 in the present second appeal.

These respondents are supporting the case of the appellant and they are

sailing along with the appellant.

6.A careful reading of the Settlement Deed executed by the father of

the appellant namely Arumuga gounder, in favour of the 1 st respondent

explicitly shows that the property in question is in the nature of a joint

family property. The recital in the Settlement Deed marked as Ex.B1

describes the property as a joint family property. Therefore, there is no

need to conduct an enquiry and find out the nature of the suit property.

7.The Hindu Succession (Amendment) Act, 2005 through which

Section 6 of the Hindu Succession Act, 1956 was amended, came into force

w.e.f. 09.09.2005. The effect of this amendment has been elaborately dealt

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with by the Hon'ble Supreme Court in Vineeta Sharma vs. Rakesh

Sharma & others reported in 2020 (5) CTC 302 and the relevant

paragraph is extracted hereunder:

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 earlier with effect from 9.9.2005 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 9.9.2005.

(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

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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 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 outrightly.

8.It is clear from the law settled by the Hon'ble Supreme Court that

the substituted Section 6 of the Act will apply to the daughter who is born

before or after the Amendment. Insofar as the daughters born prior to

09.09.2005, they will be deprived of the right only if the disposition or

alienation had taken place before 20.12.2004. The Hon'ble Supreme Court

has gone to the extent of holding that even preliminary Decree in a

partition suit will not take away the right conferred on the daughter and she

can participate in the proceedings and seek for her share. The Hon'ble

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Supreme Court has completely rejected the ground of oral partition which is

based only on oral evidence and has held that such a plea simpliciter will

not take away the right of the daughter.

9.In view of the above, immediately on the coming into force of the

Amendment Act, 2005, the appellant who is admittedly the daughter of

Arumugam gounder become a coparcenar in her own right in the same

manner as the son namely the 1st defendant. The Amendment Act does not

discriminate between the married and unmarried daughter and therefore,

the marriage of the appellant in the year 1977, pales into insignificance.

There is absolutely no material to show that there was a notional partition

and the proviso to Section 6(1) of the Act will apply only where there is any

disposition or alienation including any partition or testamentary disposition

of the property which should have taken place before 20.12.2004. In this

case, admittedly the disposition of the property had taken place only on

13.02.2006 when Arumuga gounder executed a Settlement Deed in favour

of the 1st defendant.

10.The effect of the above amendment is that the plaintiff and the 2nd

defendant who are the daughters of Arumuga gounder also became entitled

to 1/4 share in the joint family property. Hence, as on the date of the

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coming into force of the 2005 Act, Arumuga gounder, his son the 1st

defendant and his two daughters the plaintiff and the 2 nd defendant, will get

one share each in the joint family property. As on the date, when Arumuga

gounder executed a Settlement Deed in favour of the 1 st defendant, he

could have executed the settlement only insofar as his 1/4 share in the

joint family property is concerned. The said Arumuga gounder did not have

the right to execute a Settlement Deed for 1/2 share in the suit property.

To the extent the Settlement Deed exceeded 1/4 share of Arumuga

gounder, it becomes non est in the eye of law. Unfortunately, both the

Courts below failed to take note of the effect of the 2005 Amendment Act

and on this ground alone, the judgments of both the Courts below are liable

to be interfered in the present second appeal. Hence, the substantial

question of law framed by this Court is answered in favour of the appellant.

11.The resultant position is that on the demise of Arumuga gounder,

his 1/4 share in the suit property will vest with the 1 st defendant by virtue

of the Settlement Deed Dated 13.02.2006. Accordingly, the 1st defendant

will be entitled for his 1/4 share in the joint family property and also the

1/4 share of Arumuga gounder. The appellant/plaintiff will be entitled for

1/4 share in the suit property and the legal heirs of the deceased 2 nd

defendant together will be entitled for the balance 1/4 share in the suit

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property. A preliminary decree to this effect is passed in this second appeal.

12.In the result, the Judgments and Decrees passed by both the

Courts below are set aside and the second appeal is allowed to the extent

indicated herein above. Considering the facts and circumstances of the

case, there will be no order as to costs. Consequently, connected

miscellaneous petition is closed.

                                                                                 09.02.2022

                Index             :Yes
                Internet :Yes
                ssr

                To

                1.The Ist Additional Sub Judge, Erode.

2.The II Additional District Munsif of Erode.

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N.ANAND VENKATESH.,J

ssr

S.A.No.472 of 2012 and M.P.No.1 of 2012

09.02.2022

(2/2)

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