Madras High Court
Alamelu vs Venkatesan on 23 October, 2024
2024:MHC:3831
S.A.No.141 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.10.2024
Coram:
THE HONOURABLE MR. JUSTICE R.SAKTHIVEL
S.A.No.141 of 2020
and
C.M.P.No.3155 of 2020
Vedhavalli (died)
1. Alamelu
2. Lalitha
3. Sudha
4. Kumar ... Appellants / Plaintiffs
Vs.
Venkatesan ... Respondent / Defendant
Prayer: This Second Appeal is filed under Section 100 of Code of Civil
Procedure praying to set aside the Judgment and Decree dated August 1,
2018 passed in A.S.No.69 of 2011 on the file of the learned Additional
District (Fast Track Court), Villupuram, partly allowing the Judgment and
Decree dated October 27, 2010 passed in O.S.No.64 of 2009 on the file of
the Principal Subordinate Judge, Villupuram.
For Appellants : Mr.N.Suresh
For Respondent : Mr.T.R.Sathiyamohan
https://www.mhc.tn.gov.in/judis
Page No.1 of 32
S.A.No.141 of 2020
JUDGMENT
This Second Appeal has been preferred against the Judgment
and Decree passed by the ‘learned Additional District Judge (Fast Track
Court) Villupuram’ ['First Appellate Court' for short] in A.S.No.69 of 2011
modifying the Judgment and Decree passed in O.S.No.64 of 2009 on the
file of the ‘Principal Sub Court, Villupuram’ ['Trial Court' for short].
2. For the sake of convenience, hereinafter, the parties will be
referred to as per their array in the Original Suit.
Case of the Plaintiffs:
3. The Suit Properties along with some other properties
belonged to one Adhimoolam. The said Adhimoolam died intestate 40
years before the date of Plaint. Govindasamy and Krishnan were the sons
of said Adhimoolam.
3.1. The Suit ‘A’ Schedule is the genealogy representing the
relationship between the parties. The Suit ‘B’ Schedule properties were
ancestral properties in hands of said Adhimoolam. After his demise, they
were allotted to Govindasamy in an Oral Partition held between he and his
brother – Krishnan, and since then Govindasamy is in possession and
enjoyment of the same. The Suit ‘C’ Schedule properties are all ancestral
https://www.mhc.tn.gov.in/judis
properties. It contain 11 items out of which Item Nos.4 to 7 were allotted
to the share of Govindasamy along with half share in Item Nos. 1 to 3 in
the aforesaid Oral Partition. The remaining half share in Item Nos. 1 to 3
were allotted to the share of Krishnan in the said Oral Partition, which
were later sold by Krishnan to Govindasamy. The Suit 'D' Schedule
properties were purchased from and out of the income derived from the
Suit 'B' and ‘C’ schedule properties. Thus, all the Suit Properties are
ancestral properties.
3.2. Govindasamy died intestate on January 8, 2003 leaving
behind the 1st plaintiff (his wife), 2nd plaintiff (his daughter) and the
defendant (his son). The Plaintiff Nos. 3 to 5 are the defendant’s children
born through his wife - Mayavathi. The 3rd plaintiff got married in January
22, 1999 that is to say after the commencement of Tamil Nadu Act No.1 of
1990. The defendant neglected and refused to maintain his wife –
Mayavathi and Plaintiff Nos.3 to 5 and got into a relationship outside of
marriage with one Vellachi. Further, with a view to defeat and defraud the
plaintiffs rights over the Suit Properties, the defendant attempted to
alienate the same. The plaintiffs caused Notice dated January 20, 2009 to
the defendant seeking partition of Suit Properties. The defendant sent
https://www.mhc.tn.gov.in/judis
Reply dated February 14, 2009 refusing to partition the Suit Properties.
Hence, this Suit for partition.
Case of the Defendant:
4. The defendant filed Written Statement stating that the
genealogy in Suit ‘A’ schedule is not described relationship correctly. The
2nd plaintiff is born before the commencement of the Hindu Succession
Act, 1956 ['H.S.Act' for short] and hence, the 2 nd plaintiff is not entitled to
any share in the Suit Properties. During the lifetime of Govindamsamy, the
2nd plaintiff received jewels and cash along with some movable properties
and after his demise, she relinquished her rights over the Suit Properties
orally. Further, the defendant's wife - Mayavathi deserted him 25 years
before the date of Plaint without any reason. Thereafter, the defendant
began living with one widow named Vellachi as husband and wife.
Through the said Vellachi, the defendant has one son namely Sasikumar
and one daughter namely Tamizharasi. The said Sasikumar and
Thamizharasi are also having shares in the Suit Properties, who are
necessary parties to the Suit. Hence, the Suit is bad of non-joinder of
necessary parties. Furthermore, plaintiffs concealed a house property of an
extent of 108 sq.mtr. in Grama Natham R.Survey No. 403 /10 including
https://www.mhc.tn.gov.in/judis
the house therein, as well as a house site of an extent of 18½ Cents in
Survey No.76/6 and 76/7. Since they are in possession and enjoyment, the
same have not included in the Plaint schedule. Hence, the suit is bad for
partial partition. Accordingly, he prayed to dismiss the Suit.
Trial Court:
5. At trial, the 1st plaintiff - Vedhavalli was examined as
P.W.1 and Ex.A.1 to Ex.A.8 were marked on the side of the plaintiffs. On
the side of the defendant, the defendant - Venkatesan was examined as
D.W.1 and Ex.B.1 to Ex.B.8 were marked. One Velayudham was
examined as D.W.2.
6. The Trial Court after full-fledged trial came to the
conclusion that the plaintiffs 1 and 2 each are entitled to 1/6 share, and the
plaintiffs 3 to 5 as well as the defendant are each entitled to 2/12 share in
the Suit Properties except Item No.9 of Suit ‘B’ schedule. The Trial Court
dismissed the Suit qua 9th Item in Suit 'B' Schedule as both sides failed to
adduce evidence to prove that it belong to their family. Accordingly, it
passed a Preliminary Decree.
https://www.mhc.tn.gov.in/judis
First Appellate Court:
7. Feeling aggrieved, the defendant filed appeal in A.S.No.69
of 2011 on the file of the First Appellate Court, which after hearing both
sides, concluded that the defendant married Vellachi during the
subsistence of his first marriage and therefore, it is void. Hence, the said
Sasikumar and Thamizharasi are not co-parceners along with the plaintiffs
and they are not entitled to claim any share in the Suit Properties. Hence,
they are not necessary parties to the Suit. Further, it held that the said
house property in R.Survey No.403 /10 stands in the name of Mayavathi
and since the defendant failed to establish that the it is a joint family
property, the same is separate property of Mayavathi. The said house site
in Survey Nos.76/6 and 76/7 are found in Item No.4 of Suit ‘B’ Schedule.
Hence, the Suit is not bad for partial partition. Further, it concluded that
the Plaintiff Nos.3 to 5 are each entitled to 1/8 share in the Suit Properties.
Accordingly, the First Appellate Court partly allowed the appeal and
modified the Trial Court’s Judgment and Decree to the effect that the
plaintiffs 3 to 5 are entitled to each 1/8 share in the Suit Properties.
https://www.mhc.tn.gov.in/judis
Substantial Question of Law:
8. Feeling aggrieved with the Judgment and Decree passed by
the First Appellate Court, the plaintiffs have preferred this Second Appeal
which was admitted on 09.08.2024 on the following Substantial Question
of Law:
"Whether the judgment and decree of the trial Court as
well as the first appellate Court are correct in view of the
amendment made in Section 6 of the Hindu Successions Act,
1956 (Act No.39 of 2005) and in view of the decision of Hon'ble
Supreme Court in Vineeta Sharma V. Rakesh Sharma and
Others reported in (2020) 9 SCC Page 1?”
Arguments
9. The learned Counsel for the plaintiffs submits that the Suit
Properties are ancestral properties. The 2nd plaintiff who is the daughter of
Govindasamy and a co-parcener by birth is entitled to equal share along
with the defendant in view of the H.S.Act as amended by the Central Act
No.39 of 2005. He further submits that the dismissal by the Trial Court in
respect of 9th Item of Suit 'B' Schedule property is erroneous. The First
Appellate Court without appreciating the facts and circumstances and
without considering the Central Act No. 39 of 2005 in the right
https://www.mhc.tn.gov.in/judis
perspective, passed its Judgment and Decree. He also submits that the 1 st
plaintiff died intestate after the First Appellate Court’s Judgment and
Decree. Hence, as per the dictum laid down in the case of Vineeta Sharma
-vs- Rakesh Sharma and Others reported in (2020) 9 SCC 1, the 2nd
plaintiff is entitled to 6/12 share and the plaintiffs 3 to 5 are entitled to
1/12 share each (collectively 3/12). Thus, totally the plaintiffs are entitled
to 9/12 share and the defendant is entitled to 3/12 share. He further
submits that the alleged marriage between the defendant and the said
Vellachi has not been proved. Hence, the children born to the defendant
through Vellachi, namely Sasikumar and Thamizharasi are not entitled to
any share in the Suit Properties. Hence, they are not necessary parties to
this Suit. Accordingly, the learned Counsel prays to allow this Second
Appeal.
9.1. He would rely on the following decision:
(i) M.M. Kumaresan’s Case – [M.M. Kumaresan -vs-
M. Shanmugavadivu, reported in 2024 SCC OnLine Mad
2863]
https://www.mhc.tn.gov.in/judis
10. In response, the learned Counsel for the defendant
submits that the Trial Court passed the Preliminary Decree granting 1/6
share each to the plaintiffs 1 and 2, and 2/12 share each to the plaintiffs 3
to 5 as well as the defendant in the Suit Properties. Against which, the
plaintiffs did not prefer any appeal. Under these circumstances, the Trial
Court’s findings reached finality as far as the plaintiffs are concerned.
Hence, this Second Appeal is not maintainable. He further submits that the
First Appellate Court after considering the evidence and documents, rightly
passed the Judgment and decree in which there is no need for interference
of this Court.
10.1.He further submits that the defendant's grandfather -
Adhimoolam died in or about 1969-1970. On the date of death of
Adhimoolam, the defendant had already been born. Hence, the defendant
was a co-parcener along with his father Govindasamy and grandfather -
Adhimoolam. Hence, immediately after the death of Adhimoolam, the
defendant, as a co-parcener would be entitled to 1/4 share. He further
submits that though the marriage between the defendant and the said
Vellachi is a void one, the children born to them namely Sasikumar and
Thamizharasi are entitled to share in the Suit Properties. Hence, the above
https://www.mhc.tn.gov.in/judis
said persons are necessary parties to the Suit. But they have not been
added as parties. Hence, the Suit is bad for non-joinder of necessary
parties. Accordingly, he prays to dismiss this Second Appeal.
Discussion:
11. Based on the pleadings, the following Genealogy chart
is drawn to show the relationship between the parties:
12. The Suit Properties are ancestral properties. Govindasamy
died on January 8, 2003. The original owner - Adhimoolam, grandfather of
the 1st plaintiff and the defendant passed away around 1970, leaving
behind two sons – Govindasamy and Krishnan. After the demise of
Adhimoolam, Govindasamy and Krishnan orally divided their ancestral
https://www.mhc.tn.gov.in/judis
properties, whereby Suit ‘B’ Schedule properties were allotted to
Govindasamy. Further, in the said Oral Partition, Item Nos.4 to 7 of Suit
‘C’ Schedule properties were allotted to the share of Govindasamy along
with half share in Item Nos. 1 to 3 thereof. The remaining half share in
Item Nos. 1 to 3 were allotted to the share of Krishnan in the said Oral
Partition, which were later sold by Krishnan to Govindasamy. The Suit 'D'
Schedule properties were purchased from and out of the income derived
from the Suit 'B' and ‘C’ schedule properties. There is no dispute with
respect to the above said facts. Further, there is no dispute with respect to
the fact that the 2nd plaintiff is the sister of the defendant and Plaintiff Nos.
3 to 5 are children of the defendant born through his wife – Mayavathi;
and that Sasikumar and Thamizharasi were born to the defendant through
Vellachi. The dispute lies in whether Sasikumar and Thamizharasi were
born in a wedlock or not. The defendant contends that he and the Vellachi
are living as husband and wife after his wife – Mayavati deserted him and
only in the said relationship Sasikumar and Thamizharasi were born to
them. Admittedly, during the subsistence of marriage with the first wife,
the defendant got into a relationship with Vellachi. Hence, even while
assuming that the defendant and Vellachi had got married, the marriage is
https://www.mhc.tn.gov.in/judis
void, and the children born in void marriage would not be entitled to the
property of any co-parcener other than that of their parents. It is pertinent
to cite the decision of Hon'ble Supreme Court in Revanasiddappa -vs-
Mallikarjun, reported in (2023) 10 SCC 1, whereby the Hon'ble Supreme
Court has settled the law in this regard. Relevant extract is hereunder:
“81.We now formulate our conclusions in the
following terms:
81.1.In terms of sub-section (1) of Section 16, a child
of a marriage which is null and void under Section 11 is
statutorily conferred with legitimacy irrespective of whether :
(i) such a child is born before or after the commencement of
the amending Act, 1976; (ii) a decree of nullity is granted in
respect of that marriage under the Act and the marriage is
held to be void otherwise than on a petition under the
enactment;
81.2.In terms of sub-section (2) of Section 16 where a
voidable marriage has been annulled by a decree of nullity
under Section 12, a child “begotten or conceived” before the
decree has been made, is deemed to be their legitimate child
notwithstanding the decree, if the child would have been
legitimate to the parties to the marriage if a decree of
dissolution had been passed instead of a decree of nullity;
81.3.While conferring legitimacy in terms of sub-
section (1) on a child born from avoid marriage and under
sub-section (2) to a child born from a voidable marriage
which has been annulled, the legislature has stipulated in
https://www.mhc.tn.gov.in/judis
sub-section (3) of Section 16 that such a child will have rights
to or in the property of the parents and not in the property of
any other person;
81.4.While construing the provisions of Section 3(j) of
the HSA, 1956 including the proviso, the legitimacy which is
conferred by Section 16 of the HMA, 1955 on a child born
from avoid or, as the case may be, voidable marriage has to
be read into the provisions of the HSA, 1956. In other words,
a child who is legitimate under sub-section (1) or sub-section
(2) of Section 16 of the HMA would, for the purposes of
Section 3(j) of the HSA, 1956, fall within the ambit of the
explanation “related by legitimate kinship” and cannot be
regarded as an “illegitimate child” for the purposes of the
proviso;
81.5.Section 6 of the HSA, 1956 continues to
recognise the institution of a joint Hindu family governed by
the Mitakshara law and the concepts of a coparcener, the
acquisition of an interest as a coparcener by birth and rights
in coparcenary property. By the substitution of Section 6,
equal rights have been granted to daughters, in the same
manner as sons as indicated by sub-section (1) of Section 6;
81.6.Section 6 of the HSA, 1956 provides for the
devolution of interest in coparcenary property. Prior to the
substitution of Section 6 with effect from 9-9-2005 by the
amending Act of 2005, Section 6 stipulated the devolution of
interest in a Mitakshara coparcenary property of a male
Hindu by survivorship on the surviving members of the
coparcenary. The exception to devolution by survivorship was
https://www.mhc.tn.gov.in/judis
where the deceased had left surviving a female relative
specified in Class I of the Schedule or a male relative in
Class I claiming through a female relative, in which event the
interest of the deceased in a Mitakshara coparcenary
property would devolve by testamentary or intestate
succession and not by survivorship. In terms of sub-section
(3) of Section 6 as amended, on a Hindu dying after the
commencement of the amending Act of 2005 his interest in the
property of a joint Hindu family governed by the Mitakshara
law will devolve by testamentary or intestate succession, as
the case may be, under the enactment and not by
survivorship. As a consequence of the substitution of Section
6, the rule of devolution by testamentary or intestate
succession of the interest of a deceased Hindu in the property
of a joint Hindu family governed by Mitakshara law has been
made the norm;
81.7.Section 8 of the HSA, 1956 provides general
rules of succession for the devolution of the property of a
male Hindu dying intestate. Section 10 provides for the
distribution of the property among heirs of Class I of the
Schedule. Section 15 stipulates the general rules of
succession in the case of female Hindus dying intestate.
Section 16 provides for the order of succession and the
distribution among heirs of a female Hindu;
81.8.While providing for the devolution of the interest
of a Hindu in the property of a joint Hindu family governed
by Mitakshara law, dying after the commencement of the
amending Act of 2005 by testamentary or intestate
https://www.mhc.tn.gov.in/judis
succession, Section 6(3) lays down a legal fiction, namely,
that “the coparcenary property shall be deemed to have been
divided as if a partition had taken place”. According to the
Explanation, the interest of a Hindu Mitakshara coparcener
is deemed to be the share in the property that would have
been allotted to him if a partition of the property has taken
place immediately before his death irrespective of whether or
not he is entitled to claim partition;
81.9.For the purpose of ascertaining the interest of a
deceased Hindu Mitakshara coparcener, the law mandates
the assumption of a state of affairs immediately prior to the
death of the coparcener, namely, a partition of the
coparcenary property between the deceased and other
members of the coparcenary. Once the share of the deceased
in property that would have been allotted to him if a partition
had taken place immediately before his death is ascertained,
his heirs including the children who have been conferred with
legitimacy under Section 16 of the HMA, 1955, will be
entitled to their share in the property which would have been
allotted to the deceased upon the notional partition, if it had
taken place; and
81.10.The provisions of the HSA, 1956 have to be
harmonised with the mandate in Section 16(3) of the HMA,
1955 which indicates that a child who is conferred with
legitimacy under sub-sections (1) and (2) will not be entitled
to rights in or to the property of any person other than the
parents. The property of the parent, where the parent had
an interest in the property of a joint Hindu family governed
under the Mitakshara law has to be ascertained in terms of
https://www.mhc.tn.gov.in/judis
the Explanation to sub-section (3), as interpreted above.
82.Before concluding, it would be necessary to clarify
that the reference to the three-Judge Bench in this batch of
cases is confined to joint Hindu families governed by
Mitakshara law. This Court has, therefore, dwelt on the
interpretation of the provisions of the HSA, 1956 in relation
to joint Hindu families of that class.”
(Emphasis supplied by this Court)
13. Thus, it is clear that Sasikumar and Tamizharasi born in
the relationship between the defendant and Vellachi, are not entitled to any
right/interest in the coparcenary property. They can claim share only in
their parents’ share after their lifetime. Hence, Sasikumar and Tamilzharasi
are not necessary parties to the Suit. The First Appellate Court rightly
concluded so and there is no need for interference with the said finding.
14. As regards the defendant’s contention of partial partition,
the First Appellate Court in its Judgment under Point No.(2) has held thus:
“On perusal of Ex.B.6, it is found that that patta no.
825 in S.no. 403/2010 stands in the name of Mayavathi W/o.
Venkatesan. The defendant not produced any evidence that
alleged property was purchased from the income of
Govindhasamy padaiyatchi. Therefore it was only her separate
property. On perusal of Ex.B.7 and Ex.B.8 with respect to the
https://www.mhc.tn.gov.in/judis
property in R.S.no. 76/6 and 76/7 ad measuring 18 1/2 cents
changed as R.S.no. 385/5, 385/6 as per patta no. 728, 826.
The plaintiff included the alleged property as item 4 in B
schedule of property. Therefore the contention of the defendant
that the suit was bad for partial partition is not sustainable and
the point is answered accordingly.”
15. The above findings are based on evidence on record,
namely Ex-B.6 – Patta and the Plaint. This Court does not find any
illegality or infirmity with the same. Hence, as regards the defendant’s
contention of partial partition, the First Appellate Court’s finding holds
good.
16. Another contention of the defendant is that the 2nd
plaintiff has no right in the Suit Properties as she relinquished the same at
the time of demise of father – Govindasamy in 2003. It is a settled legal
position that when the law postulates that transfer must be in writing and
registered, it can be done that way only. If law does not require a written
document, then transfer can be made orally. As per the Transfer of
Property Act, 1882, relinquishment need not be in writing. Hence, oral
relinquishment is valid. But it has to be proved and the burden is upon the
https://www.mhc.tn.gov.in/judis
person who asserts oral relinquishment [See Ramdas Chimna Vs.
Pralhad Deorao reported in AIR 1965 Bom 74]. In this case, the
defendant failed to adduce any oral or documentary evidence to prove the
oral relinquishment. Mere pleading does not amount to proof. Hence, the
contention of the defendant regarding partial partition deserves to be
rejected.
17. As far as the finding regarding Item No.9 of the Suit “B”
Schedule Properties is concerned, during the course of arguments both
sides contended that it belongs to their family. To be noted, this is a Suit
for partition. Either the plaintiff or the defendant ought to have filed
document to show that the Item No. 9 belongs to their family. But they
have failed to do so. No doubt that in a Final Decree proceeding, a
property inadvertently omitted in the Suit may even be included on proof.
Similarly, on proof by either side, Item No.9 shall be included for partition
in the Final Decree Proceedings. If the said property does not belong to
them, or if not proved that it belongs to their family by either side, the
same shall be excluded during final decree proceedings.
18. Yet another contention of the defendant is that since the
https://www.mhc.tn.gov.in/judis
2nd plaintiff was born before the commencement of the H.S.Act, she is not
a co-parcener. Further contentions is that in this case, Preliminary Decree
was passed on October 27, 2010 against which no appeal was preferred by
the plaintiffs. Hence, the benefit of Vineeta Sharma’s Case (supra) cannot
be extended to the plaintiff.
19. There is no evidence available on record to assert that the
2nd plaintiff was born before 1956 i.e., before the commencement of the
H.S.Act. Even while assuming that she was born before 1956, she would
still be entitled to coparcenary property as a coparcener. The answers to
the above contentions of the defendant are found in Vineeta Sharma’s
Case (supra). Relevant extract is hereunder:
“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.
https://www.mhc.tn.gov.in/judis
(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 ClassI 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.”
(Emphasis supplied by this Court)
19.1. At this juncture, it is fruitful to cite a division bench
Judgment of this Court in M.M. Kumaresan’s Case (supra) relied on by
learned Counsel for the plaintiffs, wherein this Court relying on Vineeta
Sharma’s Case has held thus:
“18.1.The Hon'ble Supreme Court in Vineetha
Sharma's case (supra), has held that daughter of coparcener,
just like son of coparcener, becomes a coparcener at the very
moment of their birth; however, the right conferred at the
https://www.mhc.tn.gov.in/judis
very moment of their birth is exercisable prospectively on and
form the date of commencement of the Section 6 of the H.S.
Act as amended by 2005 H.S. Amendment Act i.e., on and
from September 9, 2005. Relevant extract is hereunder:
“73. It was vehemently argued that if the
daughter is given the right to be a coparcener by
birth and deemed to become a coparcener at any
point in the past, in the normal working of the
law, uncertainty would be caused. In our
opinion, no uncertainty is brought about by the
provisions of section 6 as the law of Mitakshara
coparcenary makes the share of surviving
coparceners uncertain till actual partition takes
place. Uncertainty in the right of share in a
Mitakshara coparcenary is inhered in its
underlying principles, and there is no question
of upturning it when the daughter is treated like
a son and is given the right by birth; to be
exercised from a particular date, i.e., 9.9.2005.
It is not to resurrect the past but recognising
an antecedent event for conferral of rights,
prospectively.”
(Emphasis supplied)”
20. From the above, it is clear that Vineeta Sharma’ Case
places the daughter on equal footing with the son. A son regardless of
whether he is born before or after the commencement of the H.S.Act is
https://www.mhc.tn.gov.in/judis
considered as a coparcener by birth. When the daughter is placed on equal
footing with son, it can only be that whether or not the daughter is born
after the commencement of the H.S.Act, she is entitled to the coparcenary
property as a coparcener by birth, just like the son.
21. Admittedly, the Suit Properties were ancestral properties
in the hands of Govindasamy. During the life time of Govindasamy, he, his
daughter – Alamelu and the defendant were co-parceners each entitled to
1/3 share in the Suit Properties as per Section 6 of the H.S.Act.
Govindasamy died on January 8, 2003, leaving behind his 1/3 share in the
Suit Properties. Upon his demise, his 1/3 share shall devolve upon his wife
– Vedavalli / 1st plaintiff, his daughter – Alamelu / 2nd plaintiff and his son
– Venkatesan / defendant under Section 8 of the H.S.Act. In other words,
each are entitled to 1/9 share in the Suit Properties under Section 8 of the
H.S.Act. This Court was informed by both sides that the 1st plaintiff died
intestate after the pronouncement of the First Appellate Court’s Judgment.
Hence, her 1/9 share in the Suit Properties shall devolve upon the 2 nd
plaintiff and the defendant under Section 15(1)(a) of H.S.Act i.e., each
would be entitled 1/18 share. As regards the defendant’s 1/3 share in the
https://www.mhc.tn.gov.in/judis
Suit Properties acquired under Section 6 of the H.S.Act, it retains the
character of coparcenary property qua Plaintiff Nos.3 to 5. Hence, the
Plaintiff Nos. 3 to 5 are entitled 1/12 share each in the Suit Properties.
22. To sum up, the 2nd plaintiff is entitled to 1/3 + 1/9 + 1/18
= 18/36 = ½ share in the Suit Properties. The Plaintiff Nos.3 to 5 are
entitled to 1/12 + 1/12 + 1/12 = 9/36 = ¼ share in the Suit Properties. The
defendant is entitled to 1/12 + 1/9 + 1/18 = 9/36 = ¼ share in the Suit
Properties.
23. As regards the contention of the defendant that
Preliminary Decree has been passed by the Trial Court and rights of the
parties have been determined and since the plaintiffs did not prefer an
appeal under Section 96 of Code of Civil Procedure, 1908 over the
Judgment and Decree of the Trial Court, they cannot seek redetermination
of shares in accordance with Vineetha Sharma’s Case. This contention is
rejected on two grounds. Firstly, the appeal is a continuation of the Suit.
Secondly, a Suit for partition is not disposed of by a Preliminary Decree. It
is apposite to cite the decision of Hon'ble Supreme Court in Ganduri
https://www.mhc.tn.gov.in/judis
Koteshwaramma v. Chakiri Yanadi, reported in (2011) 9 SCC 788,
wherein inter alia relying on S.Sai Reddy -vs- Narayana Reddy, reported
in (1991) 3 SCC 647], it was held thus:
“14.A preliminary decree determines the rights and
interests of the parties. The suit for partition is not disposed of
by passing of the preliminary decree. It is by a final decree that
the immovable property of joint Hindu family is partitioned by
metes and bounds. After the passing of the preliminary decree,
the suit continues until the final decree is passed. If in the
interregnum i.e. after passing of the preliminary decree and
before the final decree is passed, the events and supervening
circumstances occur necessitating change in shares, there is no
impediment for the court to amend the preliminary decree or
pass another preliminary decree redetermining the rights and
interests of the parties having regard to the changed situation.
15.We are fortified in our view by a three-Judge Bench
decision of this Court in Phoolchandv.Gopal Lal [AIR 1967 SC
1470] wherein this Court stated as follows: (AIR p. 1473, para
7)
“7. We are of opinion that there is
nothing in the Code of Civil Procedure which
prohibits the passing of more than one
preliminary decree if circumstances justify the
same and that it may be necessary to do so
particularly in partition suits when after the
https://www.mhc.tn.gov.in/judis
preliminary decree some parties die and shares
of other parties are thereby augmented. … So
far therefore as partition suits are concerned we
have no doubt that if an event transpires after
the preliminary decree which necessitates a
change in shares, the court can and should do
so; … There is no prohibition in the Code of
Civil Procedure against passing a second
preliminary decree in such circumstances and
we do not see why we should rule out a second
preliminary decree in such circumstances only
on the ground that the Code of Civil Procedure
does not contemplate such a possibility. … for it
must not be forgotten that the suit is not over till
the final decree is passed and the court has
jurisdiction to decide all disputes that may arise
after the preliminary decree, particularly in a
partition suit due to deaths of some of the
parties. … a second preliminary decree can be
passed in partition suits by which the shares
allotted in the preliminary decree already
passed can be amended and if there is dispute
between surviving parties in that behalf and that
dispute is decided the decision amounts to a
decree.”
16.This Court in S. Sai Reddyv.S. Narayana
Reddy[(1991) 3 SCC 647] had an occasion to consider the
question identical to the question with which we are faced in
https://www.mhc.tn.gov.in/judis
the present appeal. That was a case where during the pendency
of the proceedings in the suit for partition before the trial court
and prior to the passing of final decree, the 1956 Act was
amended by the State Legislature of Andhra Pradesh as a
result of which unmarried daughters became entitled to a share
in the joint family property. The unmarried daughters
Respondents 2 to 5 therein made application before the trial
court claiming their share in the property after the State
Amendment in the 1956 Act. The trial court by its judgment and
order dated 24-8-1989 rejected their application on the ground
that the preliminary decree had already been passed and
specific shares of the parties had been declared and, thus, it
was not open to the unmarried daughters to claim share in the
property by virtue of the State Amendment in the 1956 Act. The
unmarried daughters preferred revision against the order of
the trial court before the High Court. The High Court set aside
the order of the trial court and declared that in view of the
newly added Section 29-A, the unmarried daughters were
entitled to share in the joint family property. The High Court
further directed the trial court to determine the shares of the
unmarried daughters accordingly.
17.The appellant therein challenged the order of the
High Court before this Court. This Court considered the matter
thus: (S. Sai Reddy case[(1991) 3 SCC 647] , SCC pp. 651-52,
para 7)
“7. … A partition of the joint Hindu
family can be effected by various modes viz. by
a family settlement, by a registered instrument
https://www.mhc.tn.gov.in/judis
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
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
strata, it is necessary to give a liberal effect to
https://www.mhc.tn.gov.in/judis
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 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 amendment. 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.” ”
(Emphasis supplied by this Court)
24. In view of the above judicial pronouncement, even though
the plaintiffs did not file any appeal under Section 96 of the Code of Civil
https://www.mhc.tn.gov.in/judis
Procedure, 1908 against the Judgment and Decree passed by the Trial
Court, this Second Appeal filed by the plaintiffs seeking to redetermine
their rights over the Suit Properties is maintainable in view of the change in
circumstances viz., the interpretation of Section 6 of the H.S.Act as
amended by the Central Act No.39 of 2005 in Vineetha Sharma’s Case.
25. In view of the narrative thus far, this Court is of the view
that the Judgment and Decree of the Trial Court as well as the First
Appellate Court are not in accordance with Vineeta Sharma’s Case. The
Substantial Questions of Law arising in this Second Appeal are answered
accordingly.
Conclusion
26. Resultantly, this Second Appeal is allowed. The
Judgment and Decree of the Trial Court as well as the First Appellate
Court are hereby modified and a Preliminary Decree is passed in the
following terms:
(i) The second plaintiff is entitled to 18/36 share in all
items of the Suit Properties
(ii) The plaintiffs 3 to 5 are collectively entitled to 9/36
https://www.mhc.tn.gov.in/judis
share in all items of the Suit Properties.
27. Considering the relationship between the parties, there
shall be no order as to the costs. Consequently, connected Miscellaneous
Petition is closed.
23.10.2024
Index : Yes
Speaking Order : Yes
Neutral Citation : Yes
ksa-2/tk
https://www.mhc.tn.gov.in/judis
To
1. The Additional District Judge
(Fast Track Court)
Villupuram
2. The Principal Subordinate Judge
Villupuram.
3. The Section Officer,
VR Section,
High Court,
Madras.
https://www.mhc.tn.gov.in/judis
R.SAKTHIVEL, J.
Ksa-2/tk
23.10.2024
https://www.mhc.tn.gov.in/judis
