Madras High Court
Periya Chennai Naicken vs Chenna Naicken on 28 November, 2023
Author: R.Subramanian
Bench: R.Subramanian
AS.No.1016 of 2012
and SA No.443 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.11.2023
CORAM
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
and
THE HONOURABLE MR.JUSTICE N.SENTHILKUMAR
A.S.No.1016 of 2012 and MP No.1 of 2012
and SA No.443 of 2015 & MP No.1 of 2015
AS No.1016/2012
1. Periya Chennai Naicken
2. Palanisamy
3. Dhavamani
4. Saroja ... Appellants
vs.
1. Chenna Naicken
2. Amulraj
3. Dharmaraj
4. Mutha Naicken
5. Duraisamy
1/30
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AS.No.1016 of 2012
and SA No.443 of 2015
6. Chinnaraj
7. Rangammal
8. Lakshmi
9. Rajammal ... Respondents
Appeal suit has been filed under Section 96 read with Order XLI
Rule 1 of the Civil Procedure Code, against the judgment and decree
dated 03.07.2012 made in O.S.No.68 of 2007 on the file of the I
Additional District Court, Erode.
For Appellants : Mr.N.Manokaran
For Respondents : Mr.M.Guruprasad, for RR4 to 6
RR 1 to 3 & 7 to 9 – served
– No appearance
SA No.443 of 2015
1. Muthu Naicker
2. M.Duraisamy
3. P.M.Chinnaraj
4. P.D.Rajagopalan
5. D.Saravanan
2/30
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AS.No.1016 of 2012
and SA No.443 of 2015
6. C.Jaganathan ..Appellants
Vs.
Muthanaicker (Died)
1. Palanisamy
2. Thavamani
3. Saraja
4. Periya Chenna Naicker
5. Chenna Naicker
6. Minor Kumaresan
son of Chinnaraj
Minor Rep. Court Guardian T.Senthil Kumar
Pachapali, Mettunasuvampalayam Village,
Erode Taluk, Erode District.
7. L.Latha
8. Rangammal ..Respondents
PRAYER: Second Appeal filed under Section 100 of the Code of Civil
Procedure, to set aside the judgment and decree dated 05.06.2013 made
in A.S.No.8 of 2013 on the file of Principal District Court, Erode
confirming the findings of the judgment and decree dated 21.07.2011
made in O.S.No.262 of 2010 on the file of Principal Sub Court, Erode.
3/30
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AS.No.1016 of 2012
and SA No.443 of 2015
For Appellants : Mr.M.Guruprasad
For Respondents : Mr.N.Manokaran, for RR1 to 3
Mr.K.Vasanthanayagan
for Ms.Kavya Silambanan, for R7
RR 4 to 6 & 8 – No appearance
COMMON JUDGMENT
(Judgment of the Court was delivered by R.SUBRAMANIAN, J.)
These Appeals have been posted together since a common
question relating to validity of a document styled as a Partition Deed
dated 29.05.1961, entered into between the parties to these Appeals,
arises for consideration in both the appeals.
2. The facts leading to the Appeals are as follows:
One Muthiyalu Naicker, had two sons Periya Mara Naicker and
Mara Naicker. They constituted a joint Hindu family and it was
possessed of various properties. Periya Mara Naicker had three sons by
name Periya Chenna Naicker, Mutha Naicker and Chenna Naicker. Mara
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Naicker had one son by name Mutha Naicker and a daughter
Rangammal. Two sons of Periya Mara Naicker viz. Periya Chenna
Naicker and Mutha Naicker launched a suit in OS No.68 of 2007 seeking
partition and separate possession of their 4/16th share in the suit
properties, claiming that as per the Registered Deed of Partition dated
29.05.1961, the branch of Periya Mara Naicker was allotted 3/4th share
in the suit properties and 1/4th share was allotted to the branch of Mara
Naicker, the younger brother.
3. The entire suit was based on the registered document dated
29.05.1961 and it was in respect of two items of properties situate in
MettuNasuvanpalayam Village, Erode District. One son of Periya Mara
Naicker viz. Chenna Naicker was made the first defendant in that suit.
The son of Mara Naicker viz. Mutha Naicker was the fourth defendant
and Rangammal daughter of Mara Naicker was the seventh defendant.
While defendants 2 and 3 are the children of Chenna Naicker, the
defendants 5, 6 and 8 are the children of Mutha Naicker. Since one of
the sons of Mutha Naicker, by name Chenna Naicker died his wife
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Rajammal was impleaded as the ninth defendant.
4. This suit was resisted by the defendants therein including
Chenna Naicker one of the sons of Periya Mara Naicker, contending that
there was no partition under the document dated 29.05.1961. The
plaintiffs were put to strict proof of their claim that there was a partition
on 29.05.1961 and there was a division of properties under the said
instrument. It was also contended that Periya Mara Naicker and Mara
Naicker died within a very short span of time, about 30 years prior to the
suit and soon after the death of the brothers, the parties had divided the
properties orally by metes and bounds and have been in enjoyment of
their respective shares. Mutation of the Revenue Records was also
effected.
5. The seventh defendant Rangammal filed a two paragraph
written statement contending that the pleadings in the plaint are false and
she paid Court fee for allotment of her share in the properties.
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6. On the above pleadings, the Trial Court framed the following
issues:
1.Whether the partition was effected between the
parties soon after the death of the plaintiff’s father;
2.Whether the 1stdefendant has effected
improvements in the property allotted to him;
3.Whether mutation has been effected by the
Revenue authorities to the divided properties;
4.Whether the plaintiffs are entitled for a decree
for partition;
5. To what reliefs the plaintiffs are entitled to?
7. At trial on the side of the plaintiffs, the first plaintiff was
examined as P.W.1 and Exhibits A1 to A11 were marked. The fourth
defendant viz. Mutha Naicker was examined as D.W.1 and the seventh
defendant Rangammal was examined as D.W.2. No documents were
produced on the side of the defendants.
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8. The Trial Court on a consideration of the evidence came to the
conclusion that Ex.A1 Partition Deed dated 29.05.1961 cannot be termed
as a partition, since there is no division of properties by metes and
bounds. The document does not disclose an actual division and hence
the same is not valid. The Trial Court also disbelieved the theory of oral
partition as claimed, but, however, chose to dismiss the suit in its entirety
on the ground that the suit is bad for partial partition, since the properties
situate in another Village viz. Nallagoundanpalayam were not included.
This judgment and decree are under challenge at the instance of the
plaintiffs in the said suit.
9. Another suit in OS No.262 of 2010 was filed by one of the sons
of Periya Mara Naicker viz. Mutha Naicker for partition and separate
possession of his 4/16th share in the properties that are situate at
Nallagoundenpalayam again based on the said Partition Deed dated
29.05.1961. In that suit, the first plaintiff in OS No.68 of 2007 viz. the
partition suit relating to the properties at Mettunasuvanpalayam was
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impleaded as the first defendant and the other defendants were also
shown as defendants in the said suit.
10. The first defendant filed a separate written statement in the
said suit denying the partition dated 29.05.1961. The other defendants
also took a similar plea. It was also contended that the suit was bad for
partial partition. The tenth defendant filed a separate written statement.
11. On the pleadings, the Trial Court framed the following issues:
1.Whether the suit is bad for non-joinder of
necessary parties;
2.Whether the description of suit properties is
correct;
3.Whether the Partition Deed dated 29.05.1961
is true, valid and acted upon;
4.Whether the claim that there is a change in the
survey numbers is correct:
5.Whether the plaintiffs are in joint possession of
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the suit properties;
6.Whether the plaintiffs are entitled to a decree
as prayed for;
7. To what reliefs the plaintiffs are entitled to?
Following additional issues were framed subsequently on 09.03.2010:
1.whether it is correct to contend that the
Partition Deed dated 29.05.1961 will not bind the 11th
defendant;
2.whether the properties were purchased out of
the income from the ancestral properties;
3.Whether the Eleventh defendant is entitled to
the share in the suit properties; and
4.Whether the suit is bad for partial partition.
12. At trial in the said suit, the first plaintiff Mutha Naicker was
examined as P.W.1 and the second plaintiff Palanisamy was examined as
P.W.2, Exhibits A1 to A15 were marked. The third defendant Muthu
Naicker was examined as D.W.1 and Exhibits B1 to B10 were marked.
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13. The learned Trial Judge concluded that as per the Partition
Deed dated 29.05.1961, the plaintiffs would be entitled to 4/16th share,
while upholding the said partition. A preliminary decree was also
granted. Aggrieved the defendants preferred an Appeal in AS No.8 of
2013. The learned Appellate Judge on the contentions of the parties
framed the following points for determination:
1.Whether the suit is bad for partial partition;
2.Whether the suit is not maintainable in view of
non-joinder of necessary parties;
3.Whether the plaintiffs are entitled to a share
as claimed in the plaint.
14. The learned Appellate Judge held that the suit is not bad for
partial partition, he also came to the conclusion that the suit is not bad
for non-joinder of necessary parties and on the above findings, confirmed
the conclusions of the learned Trial Judge and dismissed the appeal,
hence the Second Appeal.
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15. The following questions of law were framed for determination
in the Second Appeal.
a. Whether the Courts below are right in
decreeing the suit when the claim of partial partition
is forbidden under the law;
b. Whether the Courts below are right in
decreeing the suit when the suit itself is not
maintainable for non-joinder for necessary parties;
c. Whether the Courts below are right in
holding that Ex.A1 is acted upon without proper and
necessary evidence for the same.
16. We must at the outset point out that wholly unsatisfactory
manner in which the suits have been handled by the lawyers in the Trial
Court as well as the Appellate Court. Same counsel has appeared for the
plaintiffs in both the suits viz. OS No.68 of 2007 and OS. No.263 of
2007. Both the suits have been filed in very closed proximity, while OS
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No. 68 of 2007 has been filed on 19.04.2007 and OS No.263 of 2007 has
been filed on 31.07.2007. Both the suits were filed before the Additional
District Court, but subsequently OS No.263 of 2007 was transferred to
Sub Court due to the enhancement of the pecuniary jurisdiction of the
Sub Court. Even at that time steps should have been taken to club both
the suits, since the same issue was involved in both the suits. That was
not done.
17. The first plaintiff in OS No.68 of 2007, who is the first
defendant in OS No.263 of 2010, takes conflicting stands. While he
seeks a decree for partition based on the Partition Deed dated 29.05.1961
in OS No.68 of 2007, he filed the written statement in OS No.263 of
2007 denying the Partition. Fortunately, he is not represented in the
second appeal before us by another counsel which would have put us in
an unwanted predicament. It is also stated that there is another suit filed
by the daughter of Mara Naicker viz. Rangammal, the seventh defendant
in OS No.68 of 2007 and the Eleventh defendant in OS No.263 of 2017,
seeking partition and it is stated to be pending.
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18. While the Trial Court in OS No.68 of 2017 had held that there
was no partition by metes and bounds and therefore, the document dated
29.05.1961 cannot be treated as a partition, the Court in OS No.263 of
2017 accepted the said instrument, based on a joint written statement
filed by the parties in a suit filed by third parties. This finding relating to
validity of the instrument dated 29.05.1961 is based on a joint written
statement filed by the plaintiffs and the defendants in these suits in
another suit filed by a third-party in OS No.98 of 2005. It was held that
they are estopped from questioning the document after having admitted
the same in earlier proceedings.
19. Be that as it may, the change in the law as to entitlement of
daughters to a share in the ancestral property brought about by the
amendment of Section 6 by the Amending Act 39 of 2005, has not been
taken note of by any of the Courts while disposing of either the suit or
the Appeal.
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20. The Appellate Court in AS No.8 of 2013 has not framed any
issue regarding the status of Rangammal, who figured as the ninth
respondent in the Appeal. The learned District Judge had gone on to
uphold the document on the ground that it will be covered by the proviso
to Section 6 of the Hindu Succession Act as amended by Act 39 of 2005.
We find that the said finding may not be sustainable in view of the fact
that there was no partition by metes and bounds under the document
dated 29.05.1961. We will advert to this fact a little later.
21. We have heard Mr.N.Manokaran, learned counsel appearing
for the appellants in AS No.1016 of 2012 and respondents 1, 2 & 3 in the
Second Appeal No.443 of 2015, Mr.M.Guruprasad, learned counsel
appearing for the respondents 4, 5 and 6 in AS No.1016 of 2012 and the
appellants in the Second Appeal and Mr.K.Vasanthanayagan, learned
counsel appearing for Ms.KavyaSilambanan, for the seventh respondent
in the second appeal.
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22. While Mr.N.Manokaran, learned counsel would vehemently
contend that the document in Ex.A1 dated 29.05.1961 is a valid
instrument which declares the rights of the parties and the parties having
entered into an understanding by way of a registered instrument are
bound by the same. He would also point out that in the written statement
filed in OS No.98 of 2005, the defendants in both the suits viz. OS No.68
of 2007 and OS No.263 of 2007 had taken the plea that the partition
dated 29.05.1961 is valid. The learned counsel would also further
contend that since the partition has taken place even during the life time
of Mara Naicker, son of Muthiyalu Naicker, Rangammal cannot seek to
reopen the partition.
23. Contending contra, Mr.M.Guruprasad, learned counsel
appearing for the respondents would submit that Ex.A1 dated 29.05.1961
cannot be treated as a partition that would fall under the proviso to
Section 6 of the Hindu Succession Act, which reads as follows:
“Provided that nothing contained in this sub-
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section shall affect or invalidate any disposition or
alienation including any partition or testamentary
disposition of property which had taken place before the
20th day of December, 2004.”
Explanation to the said Section regarding the meaning of the word
“partition” appearing in the proviso is as follows:
“Explanation.-For the purposes of this section
“partition” means any partition made by execution of a
deed of partition duly registered under the Registration
Act, 1908 (16 of 1908) or partition effected by a decree of
a court.”
24. Mr.M.Guruprasad, learned counsel, would submit that Ex.A1
is not a partition by itself since it is not a partition by metes and bound.
He would also invite our attention to the judgment of the Hon’ble
Supreme Court in S.Sai Reddy vs. S.Narayana Reddy and others,
reported in (1991) 3 SCC 647, wherein a similar expression appearing in
Section 29-A of the Hindu Succession Act, Andra Pradesh Amendment,
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was considered by the Hon’ble Supreme Court and it was held that in
order to come within the exception the partition should be by metes and
bounds and a preliminary decree for partition will not satisfy the
requirements of the proviso to Section 29-A. While doing so, the
Hon’ble Supreme Court observed as follows:
“7. The question that falls for our consideration
is whether the preliminary decree has the effect of
depriving respondents 2 to 5 of the benefits of the
amendment. The learned counsel placed reliance on
clause (iv) of Section 29-A to support his contention
that it does. Clause (ii) of the section provides that a
daughter shall be allotted share like a son in the same
manner treating her to be a son at the partition of the
joint family property. However, the legislature was
conscious that prior to the enforcement of the
amending Act, partitions will already have taken place
in some families and arrangements with regard to the
disposition of the properties would have been made
and marriage expenses would have been incurred etc.
The legislature, therefore, did not want to unsettle the
settled positions. Hence, it enacted clause (iv)
providing that clause (ii) would not apply to a
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daughter married prior to the partition or to a
partition which had already been effected before the
commencement of the amending Act. Thus if prior to
the partition of family property a daughter had been
married, she was disentitled to any share in the
property. Similarly, if the partition had been effected
before September 5, 1985 the date on which the
amending Act came into force, the daughter even
though unmarried was not given a share in the family
property. The crucial question, however, is as to when
a partition can be said to have been effected for the
purposes of the amended provision. A partition of the
joint Hindu family can be effected by various modes,
viz., by a family settlement, by a registered instrument
of partition, by oral arrangement by the parties, or by
a decree of the court. When a suit for partition is filed
in a court, a preliminary decree is passed determining
shares of the members of the family. The final decree
follows, thereafter, allotting specific properties and
directing the partition of the immovable properties by
metes and bounds. Unless and until the final decree is
passed and the allottees of the shares are put in
possession of the respective property, the partition is
not complete. The preliminary decree which
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determines shares does not bring about the final
partition. For, pending the final decree the shares
themselves are liable to be varied on account of the
intervening events. In the instant case, there is no
dispute that only a preliminary decree had been
passed and before the final decree could be passed the
amending Act came into force as a result of which
clause (ii) of Section 29-A of the Act became
applicable. This intervening event which gave shares
to respondents 2 to 5 had the effect of varying shares
of the parties like any supervening development. Since
the legislation is beneficial and placed on the statute
book with the avowed object of benefitting women
which is a vulnerable section of the society in all its
stratas, it is necessary to give a liberal effect to it. For
this reason also, we cannot equate the concept of
partition that the legislature has in mind in the present
case with a mere severance of the status of the joint
family which can be effected by an expression of a
mere desire by a family member to do so. The partition
that the legislature has in mind in the present case is
undoubtedly a partition completed in all respects and
which has brought about an irreversible situation. A
preliminary decree which merely declares shares
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which are themselves liable to change does not bring
about any irreversible situation. Hence, we are of the
view that unless a partition of the property is effected
by metes and bounds, the daughters cannot be
deprived of the benefits conferred by the Act. Any
other view is likely to deprive a vast section of the fair
sex of the benefits conferred by the
amendmen.(emphasis supplied). Spurious family
settlements, instruments of partitions not to speak of
oral partitions will spring up and nullify the beneficial
effect of the legislation depriving a vast section of
women of its benefits.”
25. A reading of the document that has been placed before us viz.
Ex.A1 dated 29.05.1961 shows that it is just declaration of shares and
there has been no partition by metes and bounds. In order to have the
benefit of the proviso to Section 6 of the Hindu Succession Act, there
should have been a partition by metes and bounds and a mere declaration
of shares in the form of a preliminary decree or in the form of a
registered instrument would not suffice. In Vineeta Sharma V. Rakesh
Sharma, reported in 2020 (9) SCC 1, the Hon’ble Supreme Court has
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clarified the law relating to the entitlement of a daughter as a coparcener
and in paragraph 137, the Hon’ble Supreme Court held as follows:
“137.1. 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.
137.2. 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.
137.3. Since the right in coparcenary is by
birth, it is not necessary that father coparcener
should be living as on 9-9-2005.
137.4. The statutory fiction of partition created
by the proviso to Section 6 of the Hindu Succession
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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 1956 Act 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.
137.5. In view of the rigour of provisions of the
Explanation to Section 6(5) of the 1956 Act, 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
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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.”
26. Though the Hon’ble Supreme Court concluded that in view of
the explanation to Section 6(5) of the Hindu Succession Act, oral
partition cannot be accepted as a statutory recognized mode of partition,
it however, made an exception that the plea an oral partition supported
by public documents and partition is finally evinced in the same manner
as it has been effected by a decree of Court, it may be accepted.
Therefore, it may now be open to the parties to show that there was an
oral partition which had in fact effected in a division by metes and
bounds followed by mutation of Revenue records, but, at the same time,
merely because there is a registered instrument, the same may not be
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sufficient to exclude the operation of the main Section 6 of the Hindu
Succession Act, and bring the parties within the proviso to Section 6, as
what is contemplated is an actual division of the properties by metes and
bounds, as pointed by the Hon’ble Supreme Court in S.Sai Reddy vs.
S.Narayana Reddy and others.
27. Once it is concluded that the partition dated 29.05.1961 will
not be a partition as contemplated under proviso to Section 6(5) of the
Hindu Succession Act, then the seventh defendant in OS No.68 of 2007
would be entitled to ignore the partition and seek a declaration of her
share in the property. We find that she had paid Court Fee also. We
therefore, conclude that Ex.A1 cannot be held to be a valid partition in
order to enable the other parties to exclude the seventh defendant’s claim
as a coparcener. Once we conclude that the Partition dated 29.05.1961 is
not binding on the seventh defendant and it suffers the vice of being an
inconclusive instrument not resulting in a complete division of the
properties naturally a decree for partition must follow.
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28. We therefore, answer the question of law (c) framed in Second
Appeal No. 443 of 2015, which reads as follows:
“c. Whether the Courts below are right in
holding that Ex.A1 is acted upon without proper and
necessary evidence for the same.”
in favour of the appellants therein and conclude that the said partition
cannot be acted upon. In the light of the said finding, it is not necessary
for us to answer the other two questions of law.
29. In fine, the Second Appeal in SA No.443 of 2015 will stand
allowed, the First Appeal No.1016 of 2012 will also stand allowed. The
dismissal of the suit in OS No.68 of 2007 will be set aside. There will be
a preliminary decree for partition in respect of the properties covered by
both the suits.
30. We shall now work out the shares that the parties would be
entitiled to. Muthiyalu Naicker, the original ancestor died leaving behind
two sons, each of them would be entitled to a half share in the properties.
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Upon the death of Periya Mara Naicker, his half share would devolve on
his three sons viz. Periya Chenna Naicker, Mutha Naicker and Chenna
Naicker. The half share of Mara Naicker would devolve on his son
Mutha Naicker and a daughter Rangammal equally. Therefore, the two
plaintiffs in OS No.68 of 2007 viz. Periya Chenna Naicker and Mutha
Naicker would each be entitled to 1/6th share and the first defendant
would be entitled to 1/6th share. The fourth defendant would be entitled
to 1/4th share and the seventh defendant Rangammal would be entitled to
1/4th share. It is stated that Mutha Naicker/the second plaintiff in OS
No.68 of 2007 is no more, his 1/6th share will devolve on the plaintiffs 3,
4 and 5 equally.
31. In fine, there will be a preliminary decree declaring the 1/6 th
share each of plaintiffs 1 and 2 and the first defendant in OS No. 68 of
2007 and the 1/4th share of Rangammal, the seventh defendant. There
will be a preliminary decree for partition in OS No.263 of 2007
renumbered as OS No.262 of 2010 declaring 1/6th share of the first
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plaintiff therein. It will be open to the other sharers to pay Court Fee
and have their shares declared as pointed out earlier.
32. It will be open to the third-party purchaser to claim equity in
the final decree proceedings, if he is a purchaser prior to the suit.
Considering the relation between the parties, we do not impose any costs.
Consequently, the connected miscellaneous petitions are closed.
(R.SUBRAMANIAN, J .) (N.SENTHILKUMAR, J.)
28.11.2023
Index : Yes
Internet : Yes
Neutral Citation : Yes
Speaking order
jv
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To
1. The Principal District Judge,
Erode.
2. The I Additional District Judge,
Erode.
3. The Principal Sub Court,
Erode.
2. The Section Officer,
V.R.Section,
Madras High Court.
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R.SUBRAMANIAN, J.
and
N.SENTHILKUMAR, J.
jv
A.S.No.1016 of 2012 and MP No.1 of 2012
and SA No.443 of 2015 & MP No.1 of 2015
28.11.2023
https://www.mhc.tn.gov.in/judis
