Madras High Court
V.Jayachandra (Died) vs Velankanni Gabrial on 24 July, 2023
C.R.P.(NPD)No.2699 of 2012 & S.A.No.832 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24.07.2023
CORAM :
THE HONOURABLE MR.JUSTICE V. LAKSHMINARAYANAN
C.R.P.(NPD)No.2699 of 2012 and
S.A.No.832 of 2012 and
MP.Nos.1 & 1 of 2012
CRP(NPD)No.2699 of 2012
1.V.Jayachandra (Died)
2.B.Gurupathi
3.B.Krishnaraj
4.Kousalya Nehru
5.B.Sundarraj .. Petitioners
(Petitioners 2 to 5 brought on record as LRs of the deceased Sole
Petitioner viz V.Jayachandra vide court order dated 08.08.2022 made in
CMP.Nos.10137, 10139 & 10141 of 2022 in CRP.No.2699 of 2012)
vs
1.Velankanni Gabrial
2.R.Chellammal
3.V.Savithri
4.Mallika .. Respondents
Petition filed under Section 115 of the Code of Civil Procedure
against the Fair and Final Order dated 30.03.2012 made in CMA.No.29
of 2010 on the file of IV Additional Sub-Ordinate Judge, Coimbatore,
confirming the Fair and Final Order dated 25.04.2010 made in
https://www.mhc.tn.gov.in/judis
C.R.P.(NPD)No.2699 of 2012 & S.A.No.832 of 2012
IA.No.2022 of 2008 in IA.No.1600 of 2004 in O.S.No.965 of 1988 on
the file of Principal District Munsif Court, Coimbatore.
AND
S.A.No.832 of 2012
1.V.Jayachandra (Died)
2.B.Gurupathi
3.B.Krishnaraj
4.Kousalya Nehru
5.B.Sundarraj .. Appellants
(A1 died, A2 to A5 brought on record as LRs of the deceased A1 vide
court order dated 08.08.2022 made in CMP.Nos.10132 of 2022 in
S.A.No.832 of 2012)
vs
R.V.Velusamy (Died)
1.V.Savithri
2. Mallika
3.Velankanni Gabrial .. Respondents
Petition filed under Section 100 of the Code of Civil Procedure
against the Judgment and Decree dated 30.03.2012 made in A.S.No.12 of
2011 on the file of IV Additional Sub-Ordinate Judge, Coimbatore,
confirming the Fair and Final Order dated 23.04.2010 made in
I.A.No.1600 of 2004 in O.S.No.965 of 1988 on the file of Principal
District Munsif Court, Coimbatore.
https://www.mhc.tn.gov.in/judis
C.R.P.(NPD)No.2699 of 2012 & S.A.No.832 of 2012
Case Nos. For Petitioners/ For Respondents
Appellants
CRP(NPD)No. Mr.P.Raja Mr.R.Govindaraj (for R3 and R4)
1332 of 2017
No Appearance (for R1 and R2)
SA.No.832 of Mr.P.Raja Mr.R.Govindaraj (for R1 and R2)
R3 – Not ready notice
COMMON ORDER
The suit is for partition filed by the son against the father. The
father got the property pursuant to a decree of the Court in O.S.No.801 of
1974. There is no dispute that a share was allotted to the father. There is
no dispute that the subject matter of the suits are ancestral properties.
2.At the time of presentation of the plaint, the daughter did not
have a right. The parliament amended Section 6 of the Hindu Succession
Act, 1956 and granted coparcenary status to the daughter by virtue of the
amendment made in 2006.
3.It is the admitted case of the petitioner as well as the respondent
that final decree had not been passed. Therefore, the daughter took out an
application in I.A.No.2022 of 2008 in O.S.No.965 of 1988 claiming the
relief of passing a further preliminary decree by virtue of the amendment
to the Hindu Succession Act. That application came to be dismissed and
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C.R.P.(NPD)No.2699 of 2012 & S.A.No.832 of 2012
the appeal there from also ended in dismissal. Against these finding, the
present revision has been presented.
4.Heard Mr.P.Raja, learned counsel appearing for the petitioner in
Civil Revision Petition and appellant in the Second Appeal and
Mr.R.Govindaraj, learned counsel for the respondents 3 and 4 in
CRP.No.2699 of 2012 and respondents 1 and 2 in SA.No.832 of 2012
and perused the records.
5.The issue raised is no longer res integra. It has been settled by a
three Judges Bench of the Supreme Court in Vineeta Sharma v. Rakesh
Sharma and others [(2020) 9 SCC 1]. The relevant portion of the
judgment at paragraph 129 reads as follows:-
'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.
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C.R.P.(NPD)No.2699 of 2012 & S.A.No.832 of 2012
(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 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.'
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C.R.P.(NPD)No.2699 of 2012 & S.A.No.832 of 2012
6.Since it is admitted by both sides that the partition between the
family has not attained finality by way of a registered partition deed or by
way of passing of final decree, the female who has been given a share by
the amendment, is entitled to her share in the property. In this case, she is
entitled to 1/3rd share.
7.The learned counsel for the respondent would submit that an
application has been filed only to amend the final decree and not the
preliminary decree. While factually the application for final decree has
been given in the cause title, in effect, the prayer is to pass a further
preliminary decree.
8.Be that as it may, it matters not since the parliamentary
amendment to Section 6 of the Hindu Succession Act, rips open all the
preliminary decrees which have been passed hitherto, till the proceedings
have not attained a finality by way of a passing of the final decree.
Therefore, following the three Judges Bench, I have to conclude that the
petitioner is entitled to have 1/3rd share in the property which has been
admittedly held to be ancestral. Consequently, the order of the Court
below is set aside. The learned District Munsif, Coimbatore shall pass the
preliminary decree declaring 1/3rd right in favour of the petitioner. The
Court below shall not wait for an application to pass the final decree. The
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C.R.P.(NPD)No.2699 of 2012 & S.A.No.832 of 2012
petitioner shall be impleaded in I.A.No.1600 of 2004 as a party claiming
independent right. The Court shall take up the application and appoint an
Advocate Commissioner and pass the final decree within a period of eight
(8) weeks from today.
9. S.A.No.832 of 2012:
The Second Appeal arises against the concurrent findings in
petition filed for final decree in I.A.No.1600 of 2004 dated 23.04.2010 as
confirmed by the judgment and decree in A.S.No.12 of 2011 on the file of
the IV Additional Subordinate Judge, Coimbatore. The application in
I.A.No.1600 of 2004 had been filed for passing of a final decree on the
basis of the preliminary decree passed by the Court below in O.S.No.965
of 1988. The question of law that has been framed for consideration is
question Nos. 'B' and 'C'.
10.I have concluded in CRP.No.2699 of 2012, based on the
judgment passed by the Supreme Court in Vineeta Sharma v. Rakesh
Sharma and others [(2020) 9 SCC 1] that the daughter has a share and
she is entitled to have the preliminary decree amended declaring her 1/3rd
share.
11.Since the preliminary decree has been modified by the order in
the revision, the final decree passed also has to be in compliance with the
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C.R.P.(NPD)No.2699 of 2012 & S.A.No.832 of 2012
preliminary decree. Since the Supreme Court has declared that a daughter
has a share in the property, necessarily the final decree has to be set
aside. Accordingly, the Second Appeal is allowed. The final decree
passed by the Courts below are set aside.
12.The matter is remanded to the file of the learned District Munsif
at Coimbatore. The learned District Munsif shall take up the final decree
application after impleading the daughter as a party to the suit and not in
her capacity as legal representative of the deceased first defendant. It
shall appoint an Advocate Commissioner and pass the final decree within
a period of nine (9) months from the date of receipt of a copy of this
order.
13.With the above directions, the civil revision petition and second
appeal are allowed. No costs. Consequently, connected miscellaneous
petitions are closed.
24.07.2023
Index:Yes/No
Speaking order/Non-speaking order
Neutral Citation:Yes/No
vs
To
https://www.mhc.tn.gov.in/judis
C.R.P.(NPD)No.2699 of 2012 & S.A.No.832 of 2012
1.The IV Additional Sub-Ordinate Judge,
Coimbatore,
2.The Principal District Munsif Court,
Coimbatore.
https://www.mhc.tn.gov.in/judis
C.R.P.(NPD)No.2699 of 2012 & S.A.No.832 of 2012
V. LAKSHMINARAYANAN,J.
vs
C.R.P.(NPD)No.2699 of 2012 and
S.A.No.832 of 2012 and
MP.Nos.1 & 1 of 2012
24.07.2023
https://www.mhc.tn.gov.in/judis
