Madras High Court
N.Angaleshwari vs Nallakutti on 16 June, 2022
S.A.(MD) No.592 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 16.06.2022
CORAM : JUSTICE N.SESHASAYEE
S.A.(MD) No.592 of 2010
and
M.P(MD).No.2 of 2010
1.N.Angaleshwari
2.Minor Saranya
3.Minor Sivashakthi
4.Minor Pandiselvi ... Appellants/Appellants/Plaintiffs
Vs.
1.Nallakutti ... Respondent/Respondent/Defendant
2.Malaiammal
3.Pandiammal
4.Bosepandi ... Respondents
(R2 to R4 are impleaded Vide Court order dated 08.11.2016 made in
CMP(MD).No.1636 of 2016 in SA(MD).No.592 of 2010)
Prayer:- Appeal filed under Section 100 of Civil Procedure Code, against
the concurrent judgment and decree dated 17.06.2009 in A.S.No.139 of
2007 on the file of the Subordinate Court, Sivagangai by confirming the
judgment and decree dated 17.07.2007 in O.S.No.73 of 2005 on the file of
the District Munsif Court, Sivagangai.
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S.A.(MD) No.592 of 2010
For Appellants : Mr.F.X.Eugene
For R1 : Mr.K.Baalasundaram
For R2 : Mr.D.Rameshkumar
For R3 & R4 : No appearance
JUDGMENT
This second appeal is preferred by the plaintiffs in O.S.No.73 of 2005 on the
file of the District Munsif Court, Sivagangai. The plaintiffs are the
daughters of the defendant. Of the four plaintiffs, the first plaintiff alone
had attained the age of majority at the time when the suit was laid. The
plaintiffs 2 to 4 were stated to be aged 16, 13, 5 respectively, and they were
represented by their mother as guardian. The suit is laid for partition of 11
items of suit properties. For the sake of convenience, the parties are
referred to as per their rank before the trial court.
2. The case of the plaintiffs is straight forward: That the 11 items of suit-
properties are ancestral properties in the hands of the defendant, and that the
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S.A.(MD) No.592 of 2010
plaintiffs as daughters of the defendant would be entitled to 4/5 share in the
suit properties as coparceners.
3. The suit was resisted by the defendant and his defences are three fold:
(a) of the 11 items of suit properties, item No. 2 is self acquired
property of the defendant, and item No.3 is assigned by the
Government, and that these properties are not partible;
(b) that the defendant had already delivered some eight items of
properties , all of which are ancestral in character, to the plaintiffs.
However, the first plaintiff/the elder daughter of the defendant had
clandestinely mutated the revenue records in the name of the wife of
the defendant. Inasmuch as these properties are also ancestral
properties, they should have been included in the plaint and the suit is
bad for seeking partial partition as these eight items of properties
were not included in the suit; and
(c) in all these properties, the defendant's sister Pandiammal has the
share in it. She is a necessary party and hence, the suit is bad for non-
joinder of necessary party.
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S.A.(MD) No.592 of 2010
4. The trial Court raised pointed issues on all the aspects of defence, but
proceeded to dismiss the suit over looking the fact that notwithstanding
Section 29-A of Hindu Succession Act, the daughters would still be entitled
to a share in the partition. The plaintiffs moved the Appellate Court in
A.S.No.139 of 2007 before the Subordinate Court, Sivagangai and the
Appellate Court also returned with the same verdict.
5. It may have to be mentioned here that so far as the trial Court is
concerned, it went by the fact that the defendant did not enter the box. That
perhaps may impact only two of the defences raised by the defendant
namely that the suit is bad for partial partition and that also the defence
relating to item No.2 of the suit properties. The trial Court has also
stretched the same fact and held that since the defendant has not entered the
box to speak about the entitlement of Pandiammal/ his sister, that contention
would also fail.
6.The plaintiffs are now before this Court and it is admitted on the following
substantial questions of law:
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(i)Whether the Lower Courts are correct in holding that the
second and third items of properties are self acquired
properties when the defendant admitted that his profession is
only agricultural and the remaining properties are all
ancestral?
(ii)Whether both the Lower Courts are correct in holding that
during the life time of Hindu father, the female members born
after 1956 to him, are not eligible to ask for partition in the
ancestral properties?
(iii)Whether the lower Courts are correct in holding that the
properties partitioned in the father's joint family properties
would become self acquired property of the father and in
which the children could not ask partition during the life time
of the father?
7. The above questions as framed does not adequately address a critical
question of law. Prior to Act 39 of 2005, unmarried daughters would be
entitled to a share in the ancestral property only Vide Sec. 29-A of the Hindu
Succession Act as inserted by the State legislature. As per the provision,
any married daughter as on the date of coming into force of that provision
would not be eligible to be considered as a coparcener for them to claim a
share as a co-parcener in the ancestral property. However, the march of law
saw the advent of amendment to Sec. 6 of the Hindu Succession Act Vide
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S.A.(MD) No.592 of 2010
Central Act 39/2005. The amended Sec. 6 literally eliminated the marital
status of a daughter a determinative criterion to seek a share in the ancestral
property, and only fixed partition in terms of the Explanation appended to
Sec.6 as the bottom line to decide whether the daughters would be entitled
to the share in the ancestral property along with the son. Certain clarity
required in understanding this provision also has been finally declared by
the Constitutional Bench of the Hon'ble Supreme Court in Vineeta Sharma
Vs Rakesh Sharma [(2020) 9 SCC 1].
8. This would imply that the plaintiffs would be entitled to a share in such
properties, which are partible. Here, an aspect of defence vis-a-vis item No.
3 of the suit property becomes significant. The defendant would say that
this item of property was assigned by the Government to him and the
learned counsel for the appellants admitted that this property indeed was
assigned by the Government to the defendant. This Court, therefore, cannot
grant a decree vis-a-vis item No.3 of the property against the terms of the
assignment and in the absence of the proceedings of assignment.
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9. Having found that the plaintiffs are entitled to a share in all the items of
the suit properties except item 3, still it needs to be that this Court is not in
a position to ascertain the specific share that each of the plaintiffs are
entitled to since Pandiammal, the sister of the defendant and the aunt of the
plaintiffs is not before the Court. In fitness of things, when the defendant
has introduced Pandiammal in his defence, the plaintiffs ought to have been
careful to implead her. On this point there was some cross-examination
when P.W.1, the mother of the plaintiffs, was in the witness box. If Vineeta
Sharma's case applies, then it would apply in equal force to the defendant's
sister Pandiammal as well.
10. Necessarily, this Court may have to remand the matter back to the trial
Court to ascertain the exact extent of share that the plaintiffs would be
entitled to in the presence of Pandiammal before it.
11. For the reasons stated, this Court sets aside the decree of the first
appellate Court and remand the matter back to the trial Court and the trial
Court shall hear Pandiammal, if she so appears and decide the inter se share
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S.A.(MD) No.592 of 2010
of the plaintiffs in the presence of Pandiammal. The plaintiffs are directed
to file necessary application for impleading Pandiammal within four weeks
from the date on which this Court has directed them to appear, and is
required to dispose of the suit within three months from the date on which
service of summons on Pandiammal is complete. It is made clear that the
case is remanded only for the purpose of hearing Pandiammal and not the
present defendant. Consequently, connected M.P(MD).No.2 of 2010 is
closed. No costs.
12. The Registry is required to transmit all the papers later by 27.07.2022 to
the trial Court. Both sides are required to appear before the trial Court on
30.07.2022.
16.06.2022
Internet:Yes
Index :Yes/No
rmk
Note: Issue order copy on 26.07.2022
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S.A.(MD) No.592 of 2010
To
1.The Subordinate Judge, Sivagangai District.
2.The District Munsif, Sivagangai.
3.The Record Keeper,
VR Section,
Madurai Bench of Madras High Court, Madurai.
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S.A.(MD) No.592 of 2010
N.SESHASAYEE, J.
rmk
S.A.(MD) No.592 of 2010
16.06.2022
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