M.Prabhavathi ... Review vs N.Selvaraj
2023 Latest Caselaw 8151 Mad

                                                                           Rev.Aplc.(MD).No.42 of 2023

                             BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                     DATED: 12.07.2023

                                                          CORAM:

                                     THE HONOURABLE MR.JUSTICE P.VELMURUGAN

                                    Rev.Aplc.(MD).No.42 of 2023 in A.S.(MD).No.9 of 2011
                                                            and
                                  C.M.P.(MD).No.7629 of 2023 in Rev.Aplc(MD).No.42 of 2023


                     M.Prabhavathi                                             ... Review Petitioner
                                                            -Vs-
                     1.N.Selvaraj
                     2.N.Ravi
                     3.N.Suresh                                                  ... Respondents


                     PRAYER: Review Application is filed under Order 47 Rule 1 read with
                     Section 114 of the Civil Procedure Code, against the order dated 27.07.2022
                     passed in A.S.(MD).No.9 of 2011 on the file of this Court, confirming the
                     judgment and decree dated 31.08.2010 passed in O.S.No.77 of 2008 on the
                     file of the Principal District Judge, Theni.


                     For Review Petitioner        : Mr.T.Lajapathi Roy, Senior counsel
                                                    for M/s.Lajapathi Roy and Associates
                     For R1 & R3                 : Mr.R.Suriyanarayana
                     For R2                      : Mr.M.Karthikeya Venkitachalapathy



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                                                                            Rev.Aplc.(MD).No.42 of 2023



                                                         ORDER

This Review Application has been filed against the judgment of

this Court in A.S.(MD).No.9 of 2011, dated 27.07.2022, confirming the

judgment and decree of the Principal District Judge, Theni in O.S.No.77 of

2008, dated 31.08.2010.

2. The applicant is the appellant in A.S.(MD).No.9 of 2011 and the

plaintiff in O.S.No.77 of 2008 on the file of the Principal District Judge,

Theni. The applicant has filed the suit for partition and separate possession

in the suit properties against the respondents, who are the brothers of the

applicant. The said suit was dismissed, against which, the plaintiff has filed

an appeal suit before this Court. This Court also, as appellate Court, re-

appreciated the evidence and dismissed the appeal. Now, the present Review

Application has been filed by the appellant to review the judgment passed

by this Court, dated 27.07.2022.

3. The applicant is the sister and the respondents are the brothers.

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The case of the applicant is that the suit properties are ancestral properties.

After the death of the father, all the applicant and the respondents were

enjoying the properties and after the Hindu Succession Act (Amendment)

2005 came into force, the appellant has become a coparcener and she is

entitled to get a share with the respondents as coparcener. After the death of

the father and the mother, the applicant as a coparcener is entitled to get a

share with the brothers.

4. The case of the respondents is that item Nos.1 to 4 of the suit

properties, are ancestral properties, and the applicant got married in the year

1980 and the father died in the year 1984. During the life time of their

father, the respondents entered into a registered partition deed on

12.09.1994 and from that date onwards, they are enjoying the properties. At

that time, the applicant was not a coparcener and she is not entitled to get

the share in the properties and only in the year 1989, the State Act came into

force. Therefore, as per the Act, the female members also become a

coparcener, provided the female could not have married prior to the date on

which the Act came into force or the partition should not have been effected.

In this case, the appellant got married in the year 1980 and the registered

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partition also effected in the year 1994. Therefore, on the date of the suit,

the applicant was not the coparcener and she is not entitled to get the share

in the properties. Therefore, both the State Act, 1989 and the Central Act,

2005 are not applicable to the review applicant.

5. The learned counsel appearing for the applicant would submit

that the relationship of parties is admitted and the registered partition deed

dated 12.09.1994 would not bind the applicant, since she is not a party to

the said partition and the mother is also not a party. However, he would

submit that one of the respondents viz., the second respondent herein filed

the suit in O.S.No.69 of 1993 against the other respondent and the applicant

for declaration, partition and separate possession. Subsequently, the suit was

settled and dismissed as settled out of Court. In the suit plaint itself, it is

stated that the properties were not partitioned. Therefore, the contention of

the respondents are not acceptable. Further, if the properties are ancestral

properties, the respondents and his father were entitled to get 1/4 th share and

the applicant is entitled to get 1/8th share from the 1/4th share of the father.

The trial Court has failed to appreciate the said fact and dismissed the suit

and hence, the appeal has been filed before this Court and this Court has

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also not properly re-appreciated the evidence and misconstrued that already

partition had taken place and the applicant is not the coparcener and she is

not entitled to maintain the suit for partition. This Court has failed to follow

the decision of the Hon'ble Apex Court in the case of Vineeta Sharme vs.

Rakesh Sharme and others reported in 2020 (9) SCC 1.

6. The earlier suit filed by one of the respondents viz., the second

respondent in the year 1993 was pending and in the plaint, it is stated that

there was no partition and when the applicant filed SLP before the Hon'ble

Supreme Court, the Hon'ble Supreme Court also made an observation that

the applicant is at liberty to file a review application, for considering the

Vineeta Sharme's case. Therefore, the present review application has been

filed.

7. The learned counsel appearing for the applicant would further

submit that there is an error apparent on the face of the records. This Court,

while dealing with the first appeal, failed to consider the fact that on the

date of filing the suit, the properties are ancestral properties and the

applicant is also a coparcener. Therefore, she is entitled to 1/4th share or

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otherwise, even at the worst, she is entitled to get 1/8th share. Therefore, the

judgment of this Court is required to be reviewed. It is submitted that

neither the appellant nor her mother is a party to the registered partition

deed dated 12.09.1994. Therefore, it would not bind them and she is also

one of the coparcener and she is entitled to get her share and the earlier suit

filed by the second respondent clearly shows that the ancestral character

was continuing till 1993, when the suit was filed and even pending suit,

they entered into a compromise and the suit was dismissed as settled out of

Court in the year 1995.

8. The learned counsel appearing for the respondents would

submit that there is no ground to review the judgment of this Court, dated

27.07.2022 in the appeal in A.S.(MD).No.9 of 2011.The trial Court has

elaborately discussed and dismissed the suit and this Court, while dealing

with the appeal, has re-appreciated the evidence and elaborately discussed

and decided that the applicant was not the coparcener and she is not entitled

to get any share and therefore, the appeal was dismissed and there is no

error apparent on the face of the records. Since the properties are ancestral

properties, item Nos.1 to 3 and 10 obtained by the father in the registered

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partition dated 28.04.1979. Thereafter, on 29.10.1984, the father died. The

applicant got married even in the year 1980 and the respondents with their

mother, entered into a registered partition dated 12.09.1994, and therefore,

on the date when the State Act came into force in the year 1989, the

properties were not in the character of ancestral properties. The applicant is

also not a coparcener. Therefore, even in the year 2005, when the Central

Act came into force, the suit properties were not coparcenary properties and

the applicant was not the coparcener and therefore, she is not entitled to get

any share and this Court had correctly re-appreciated the entire evidence

and rightly dismissed the appeal and there is no error apparent on the face of

the records and hence, the Review Application is liable to be dismissed.

9. Heard the learned counsel for the review applicant and the

learned counsel for the respondents and perused the materials available on

record.

10. Admittedly, the appellant and the respondents are the sons and

daughter of Narayanasamy and even during the life time of Narayanasamy,

there was a registered partition deed on 12.09.1994. Therefore, the partition

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was already effected. The father Narayanasamy died on 29.10.1984, then the

mother also died in the year 2008. Therefore, from 12.09.1994 till filing of

the suit, the respondents were in possession of the properties and they are

enjoying the properties as their own. Though the learned counsel for the

review applicant would submit that Ex.A12, the possession certificate given

by the Village Administrative Officer, which is in the name of

Narayanasamy, they are ancestral properties on the date of filing the suit.

The properties continue as ancestral properties, whereas Narayanasamy died

in the year 1984. Therefore, on the date of issuance of Ex.A12,

Narayanasamy is not alive. Therefore, that document cannot be given any

effect and that certificate was given in the name of a dead person. So, it

cannot be treated as a proof of document for ancestral properties which

continues till the date of issuance of Ex.A12. Further, admittedly the suit

properties in item Nos.1 to 3 and 10 are ancestral properties. The male

members of the family divided the properties even in the year 1994 and

even in the suit filed by the second respondent in O.S.No.69 of 1993, the

respondents have stated that the suit properties are ancestral properties

which were obtained by their father on 28.04.1979 and the other properties

are self acquired properties. The applicant was also as one of the

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respondents viz., the fourth defendant, who is the mother of the applicant in

the said suit also filed a written statement by adopting the written statement

filed by the first defendant, in which, she has admitted the registered

partition deed, dated 12.09.1994. The applicant remained ex-parte. Further,

the suit was dismissed only as settled out of Court and it is not stated as to

what was the settlement. Therefore, it cannot be taken into account that the

ancestral properties continued till the date of filing of the said suit in

O.S.No.69 of 1993 and the mother of the applicant herself admitted in the

written statement regarding the registered partition deed dated 12.09.1994.

Therefore, even in the year 1994, the ancestral properties were divided

through the registered partition deed dated 12.09.1994. Thereafter, the

father died in the year 1984 and subsequently, the respondents were in

possession and enjoyment of the properties. The appellant was married in

the year 1980 and the State Act came into force in the year 1989. Therefore,

on the date when the State Act came into force, the applicant was not a

coparcener, since the marriage of the applicant took place in the year 1980.

Therefore, she is not a coparcener on the date when the State Act came into

force and the Central Act came into force in the year 2005. Since the

ancestral properties were divided by registered partition deed, dated

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12.09.1994 and ceased to be ancestral properties. The properties were

partitioned even in the year 1994. From the date onwards, the respondents

were in possession and enjoyment of the properties and they were continued

to be in possession of the entire suit properties as separate properties. No

evidence produced to show that when the Central Act came into force,

whether the ancestral properties continued till as ancestral properties and

in lieu of the State Act in the year 1989 and the Central Act in the year 2005,

the applicant becomes a coparcener and she is having right by birth. Since

on the date of filing of the suit, the applicant was not in a position to prove

that there were undivided ancestral properties and she is entitled for

partition and also even otherwise, from the date of partition in the year 1994

and subsequently, till the date of filing of the suit in the year 2008, the

respondents were in possession of the suit properties as their exclusive

right. Therefore, the applicant is not entitled to get any share by way of

ouster also.

11. This Court, while dealing with the first appeal in A.S.

(MD).No.9 of 2011, had elaborately discussed regarding the entire oral and

documentary evidence, legal position and dismissed the appeal by re-

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appreciating the evidence independently and gave an independent finding

by dismissing the appeal and there is no error apparent on the face of the

records.

12. Further, the decision of the Hon'ble Apex Court in the case of

Vineeta Sharme vs. Rakesh Sharme and others reported in 2020 (9) SCC 1

is not applicable to the present case on hand. As already discussed, on the

date when the State Act came into force, the applicant was not the

coparcener and on the date when the Central Act came into force, the

properties are not the undivided ancestral properties and the same were

divided properties under registered partition deed, dated 12.09.1994. Even

though she has a right by birth as coparcener, however, on the date when

the Central Act, 2005 came into force, there were no undivided ancestral

properties. The ancestral properties were divided way back in the year 1994

under registered partition deed and the female members are coparceners on

the date of registered partition, dated 12.09.1994 as per the Central Act.

13. Under such circumstances, the above said decision of the

Honourable Supreme Court, is not applicable to the present case on hand.

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14. Therefore, there is no merit in the Review Application. In fine,

the Review Application is dismissed. No costs. Consequently, the connected

Miscellaneous Petition is closed.

12.07.2023

akv

To

1.The Principal District Judge, Theni.

2.The Section Officer, V.R.Section, Madurai Bench of Madras High Court, Madurai.

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P.VELMURUGAN, J

akv

Rev.Aplc.(MD).No.42 of 2023 in A.S.(MD).No.9 of 2011

12.07.2023

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