Madras High Court
Mr.Vedagiri vs Mrs.Vijayalakshmi on 14 February, 2023
2023/MHC/652
AS No.124 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 14-02-2023
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
AS No.124 of 2017
Mr.Vedagiri .. Appellant
vs.
1.Mrs.Vijayalakshmi
2.Mrs.Mallika
3.Mr.Krishnamoorthy
4.Mrs.Santhi
5.Bharathi
6.Mani @ Subramani .. Respondents
PRAYER : This Appeal Suit is filed under Order XLI, Rule 1 of CPC under
Section 96 of the Code of Civil Procedure to set aside the judgment and
decree dated 08.12.2016 passed by the learned Principal District Judge,
Kancheepuram District at Chengalpattu in OS No.220 of 2010.
For Appellant : Mr.A.Prabhakaran
1/12
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AS No.124 of 2017
For Respondents-1 to 5 : Ms.K.R.B.Dhaaranee
for Mr.K.V.Babu
For Respondent-6 : Ex Parte
JUDGMENT
The present Appeal Suit has been instituted against the judgment
and decree dated 08.12.2016 passed by the learned Principal District Judge,
Kanchipuram District in OS No.220 of 2010.
2. The appellant is the defendant and the respondents are the
plaintiffs in the suit.
3. The respondents/plaintiffs instituted suit for partition. For
passing preliminary decree for partition of the plaintiffs' 2/8th share and for a
direction against the appellant to render accounts in respect of rental income
from the date of the suit till the date of separate possession and to pay the
plaintiffs' 2/8th share in the rental income.
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AS No.124 of 2017
4. The plaint averments state that the mother of the first plaintiff is
Rajamani Ammal and the first defendant is her son. Plaintiffs 2 to 5 are the
grandchildren of Rajamani Ammal through her deceased first daughter
Smt.Jayalakshmi. Smt.Rajamani Ammal had four daughters and a son.
Smt.Rajamani Ammal and the appellant had purchased the suit schedule
mentioned property jointly out of savings and earnings from Varadarajalu
Pandalu under a registered Sale Deed dated 14.02.1957. Smt.Rajamani
Ammal was doing Milk Vending business and she was also a pensioner.
Later the schedule mentioned property was mortgaged to one one
D.Jaganatha Naidu for a sum of Rs.500/- in order to celebrate
Nagabushnam's marriage and later it was discharged. They are in joint
possession of the property till Rajamani Ammal died on 26.08.1994. The
first plaintiff's sister Jayalakshmi died intestate in the year 1984 leaving
behind the plaintiffs 2 to 5. Her husband predeceased her. The first
plaintiff's younger sister Thirupurasundari died unmarried in the year 1978.
The plaintiffs are jointly entitled to 2/8th share in the suit property. The first
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AS No.124 of 2017
defendant/appellant is entitled to 5/8th share and the second defendant is
entitled to 1/8th share. Though the plaintiffs orally demanded for amicable
partition, the first defendant/appellant neglected the same and the plaintiffs
issued a lawyer notice on 12.06.1995 for which the first defendant/appellant
issued a reply.
5. The plaintiffs earlier filed a suit in OS No.75 of 1997 before the
Principal Sub Court, Chengalpattu for claiming partition of 2/8th share and
that the case was transferred to the District Munsiff Court on the point of
pecuniary jurisdiction and renumbered as OS No.358 of 2004. The suit was
dismissed on 12.12.2006 after trial. During the pendency of the suit, Hindu
Succession Act was amended and the amendment came into force. While the
amendment was brought to the notice of the District Munsiff Court,
Chengalpattu, the suit was dismissed without considering the change of law
providing right of property to the amendment. In view of the amendment in
Hindu Succession Act, the plaintiffs filed a fresh suit in OS No.220 of 2010
and it was decreed in their favour.
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AS No.124 of 2017
6. The first defendant/appellant denied the plaint averments by
stating that the suit schedule property was purchased by the sale of gold
chain of 5 sovereigns presented to him by his maternal uncle
R.Elayaperumal on 01.07.1955 when the first defendant joined in St.
Joseph's High School.
7. The defendants have stated that plaintiffs' mother did not
contribute any amount and she had no means to purchase the suit schedule
property. Thus the property was purchased for the benefits of the first
defendant alone. The first defendant joined Southern Railway in September
1962 and retired as a Railway Guard receiving a monthly salary of more
than Rs.17,000/- per month. He mortgaged the property and subsequently, it
was discharged.
8. The first defendant/appellant states that the observation of the
Appellate Court in AS No.43 of 2007 will not confer any right on the
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AS No.124 of 2017
plaintiffs/respondents to institute a fresh suit for partition. The
plaintiffs/respondents have not filed any Second Appeal, challenging the
order passed in AS No.43 of 2007. Therefore, the fresh suit instituted is
liable to be dismissed as it is barred under the provisions of Section 10 of the
Code of Civil Procedure.
9. The Trial Court based on the pleadings by the parties, framed
the following issues:-
(1) Whether the suit is barred by the principles of res judicta ?
(2) Whether the plaintiffs are entitled for 2/8th share in the suit
properties ?
(3) Whether the plaintiffs are entitled for rendition of accounts ?
(4) Whether the suit is hit by Section 10 CPC ?
(5) Whether the suit has not been valued property for the purpose
of Court Fee ?
(6) To what relief the plaintiffs entitled ?
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AS No.124 of 2017
10. With reference to the findings of the Trial Court, the learned
counsel for the appellants mainly contended that the amendment came into
force cannot be applied in respect of the present case. Since the suit was
dismissed and the decree passed in the suit was confirmed in the Appeal
Suit, the appellant, instead of filing the Second Appeal, has filed fresh suit,
which is not maintainable is the one ground raised.
11. The other ground raised is that the amendment came into force
during the pendency of the civil suit and therefore, the amendment cannot be
given a retrospective effect, so as to confer the right on the plaintiffs.
12. The abovesaid grounds raised on behalf of the appellant are
disputed by the learned counsel appearing on behalf of the respondents by
stating that the partition was not effected prior to the amendment. Mere
pendency of the suit is not a bar for seeking partition based on the amended
provisions of the Hindu Succession Act amendment came into force with
effect from 09.09.2005.
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AS No.124 of 2017
13. As per the Amended Act 39 of 2005 of the Hindu Succession
Act, equal right has been conferred to women in the property by way of
succession. The said amendment has been brought to the notice of the
District Munsiff Court, Chengalpattu at the time of arguments and the
District Munsiff Court without considering the amendment, dismissed the
suit and therefore, the plaintiffs preferred an appeal and the Appellate Court
made an observation that as per the amendment, the plaintiffs can claim
right in the property. Thus, the plaintiffs have instituted a fresh suit. Since
the amendment has given a cause of action for the purpose of instituting a
fresh suit to claim property right.
14. The suit was dismissed initially only on the ground that the
plaintiffs-women are not entitled to claim property right in the dwelling
house. When equal right has been conferred on the women claiming the
share even in the dwelling house, there is no impediment for the plaintiffs for
institution of a fresh suit based on the amendment in the Hindu Succession
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AS No.124 of 2017
Act, which was enforced.
15. There is no dispute in respect of the relationship between the
parties and further, there is no dispute that the property was purchased by
the deceased Rajamani Ammal along with her son, who is the first defendant
in the suit.
16. That being the factum, the amendment provides right on the
plaintiffs to claim share in respect of the dwelling house. More-so on
account of Section 23 of the Hindu Succession Act, this Court do not find
any infirmity in respect of the findings made by the Trial Court granting the
relief in the suit.
17. Factually, there is no dispute with reference to the relationship
between the parties and in respect of dwelling house, the Trial Court
considered Section 23 of the Hindu Succession Act along with the
amendment and granted the relief in favour of the plaintiffs and passed
preliminary decree for partition of the plaintiffs' 2/8th share in the suit
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AS No.124 of 2017
mentioned property. The plaintiffs are permitted to workout their mesne
profits under Order XX, Rule 12 of the Code of Civil Procedure.
18. In view of the facts and circumstances, this Court do not find
any perversity or infirmity. The amended Hindu Succession Act confers right
on the women for claiming equal right of property, more specifically, in the
present case, the dwelling house and thus the present Appeal Suit deserves
no merit consideration.
19. Accordingly, the judgment and decree dated 08.12.2016
passed by the learned Principal District Judge, Kanchipuram District in OS
No.220 of 2010 stands confirmed and consequently, the present Appeal Suit
No.124 of 2017 is dismissed. . However, there shall be no order as to costs.
14-02-2023
Speaking Order/Non-Speaking Order.
Neutral Citation : Yes/No.
Internet : Yes/No.
Index: Yes/No.
Svn
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AS No.124 of 2017
To
The Principal District Judge,
Kancheepuram District at Chengalpattu.
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AS No.124 of 2017
S.M.SUBRAMANIAM, J.
Svn
AS No.124 of 2017
14-02-2023
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