Madras High Court
T.S.Rajan vs C.R.J.Sakunthala on 27 March, 2023
C.R.P.(MD)No.675 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 27.03.2023
CORAM
THE HONOURABLE MR.JUSTICE C.SARAVANAN
C.R.P.(MD)No.675 of 2023
and
C.M.P.(MD)No.3143 of 2023
T.S.Kamala (Died)
1.T.S.Rajan
2.T.S.Sivakumar
3.T.S.Kannan
4.L.J.Anjanaa .. Petitioners
Versus
C.R.Jothi (Died)
1.C.R.J.Sakunthala
2.Ramakonda
3.R.H.Vaishnavi
4.C.R.Balan
5.C.R.Harimoorthy
C.N.Durge (Died)
6.C.N.Thianeshwaran
7.C.N.Ramesh .. Respondents
Prayer :- Petition filed under Article 227 of the Constitution of India, against the fair
and decreetal order dated 07.11.2022, made in I.A.No.296 of 2021 in I.A.No.708 of
2005 in O.S.No.687 of 2000, on the file of the II Additional Subordinate Court,
Madurai.
For Petitioners : Mr.S.R.Sathan Boopathy
For R1 : Mr.V.Meenakshisundaram
For R5 : Mr.V.N.Arjun
https://www.mhc.tn.gov.in/judis
1/7
C.R.P.(MD)No.675 of 2023
ORDER
The present Civil Revision Petition has been filed against the fair and
decreetal order dated 07.11.2022, made in I.A.No.296 of 2021 in I.A.No.708 of 2005
in O.S.No.687 of 2000, on the file of the II Additional Subordinate Court, Madurai.
2. The petitioners are the legal representatives of the third defendant in
O.S.No.687 of 2000. The petitioners had filed I.A.No.296 of 2021 in I.A.No.708 of
2005 to amend the preliminary decree passed by the trial Court on 29.11.2004,
declaring the shares of the plaintiff as 7/24. After the preliminary decree was passed
on 29.11.2004, Section 6 of the Hindu Succession Act, 1956 was amended with
effect from 09.09.2005. As per Section 6(5) of the Hindu Succession Act, 1956, it
has been stated that nothing contained in the said Section shall apply to a partition,
which has been effected before 20th day of December, 2004.
3. The petitioners filed I.A.No.296 of 2021 on the strength of the recent
rulings of the Honble Supreme Court in Vineeta Sharma vs. Rakesh Sharma and
others reported in 2020 (5) CTC 302.
4. The learned counsel for the petitioners submitted that the trial Court has
erred in declining to amend the preliminary decree by simply relying on the language
of Section 152 of C.P.C. The learned counsel for the petitioners further submitted
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.675 of 2023
that in terms of the decision of the Hon'ble Supreme Court in Vineeta Sharma
referred to supra, the well-recognized principle of the Court that when the rights are
subsequently conferred, the preliminary decree can be amended, and the benefit of
law has to be conferred and therefore, irrespective of the language in Section 152 of
C.P.C., the trial Court ought to have amended the preliminary decree passed on
29.11.2004, in terms of the decision of the Hon'ble Supreme Court in Vineeta
Sharma's case referred to supra.
5. Per contra, the learned counsel appearing for the fifth respondent submitted
that an unintentional mistake of the Court, which may prejudice the cause of any
party, must be rectified. However, this does not mean that the Court is allowed to go
into the merits of the case to alter or add to the terms of the original decree or to give
a finding which does not exist in the body of the judgment sought to be corrected.
6. In support of his submission, the learned counsel has relied upon a decision
of the Hon'ble Supreme Court in Srihari (Dead) through LR. Smt.CH.Niveditha
Reddy vs. Syed Maqdoom Shah and others reported in 2015 (3) CTC 679. A
specific reference is made on the Latin maxim 'actus curiae neminem gravabit' i.e. an
act of Court shall prejudice no one.
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.675 of 2023
7. I have considered the arguments advanced by the learned counsel appearing
for the parties and perused the materials available on record.
8. In my considered view, the trial Court has committed an error in not
discussing the applicability of the decision of the Hon'ble Supreme Court in Vineeta
Sharma's case referred to supra. The law has been summarized by the Hon'ble
Supreme Court after examining the decisions rendered till then in Paragraph 129,
which reads as under:-
''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 the 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 the 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 the 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
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.675 of 2023
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 rigour of provisions of Explanation to Section 6(5)
of the Act of 1956t, 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 (sic effected) 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.''
9. Further, the trial Court ought to have examined Paragraph 106 of the said
judgment, which reads as under:-
''106. In the instant case, the question is different. What has been
recognised as Partition by the legislation under Section 6, accordingly,
rights are to be worked out. This Court consistently held in various
decisions mentioned above that when the rights are subsequently
conferred, the preliminary decree can be amended, and the benefit of law
has to be conferred. Hence, we have no hesitation to reject the effect of
statutory fiction of Proviso to Section 6 as discussed in Prakash v. Phulavati
[Prakash v. Phulavati, (2016) 2 SCC 36 : (2016) 1 SCC (Civ) 549] and
Danamma [Danamma v. Amar, (2018) 3 SCC 343 : (2018) 2 SCC (Civ)
385]. If a daughter is alive on the date of enforcement of the Amendment
Act, she becomes a Coparcener with effect from the date of the Amendment
Act, irrespective of the date of birth earlier in point of time.''
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.675 of 2023
10. In view of the above, I am inclined to interfere with the fair and decreetal
order, dated 07.11.2022, passed by the learned II Additional Subordinate Judge,
Madurai, in I.A.No.296 of 2021 in I.A.No.708 of 2005 in O.S.No.687 of 2000.
Accordingly, the fair and decreetal order is set aside and the case is remitted back to
the trial Court to pass a fresh order in I.A.No.296 of 2021 in I.A.No.708 of 2005 in
O.S.No.687 of 2000. within a period of three months from the date of receipt of a
copy of this order, by applying the ratio of the Hon'ble Supreme Court in Vineeta
Sharma's case referred to supra with the facts of the present case.
11. This Civil Revision Petition stands allowed with the above direction. No
costs. Consequently, connected Miscellaneous Petition is closed.
NCC : Yes/No
Index : Yes/No 27.03.2023
Internet : Yes/No
smn2
To
The II Additional Subordinate Judge,
Madurai.
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.675 of 2023
C.SARAVANAN, J.
smn2
Order made in
C.R.P.(MD)No.675 of 2023
27.03.2023
https://www.mhc.tn.gov.in/judis
