Research › Browse › Judgment

Madras High Court · body

1993 DIGILAW 126 (MAD)

Sundara Bai v. Ponmani Town Panchayat, Kanyakumari District and others

1993-02-24

PRATAP SINGH

body1993
Judgment : This appeal is directed against the order in E.A.No.135 of 1992 in E.P.No.26 of 1987 in O.S.No.18 of 1984 on the file of the Subordinate Judge, Padmanabhapuram, in which the Subordinate Judge has dismissed the petition filed by the appellant herein under O.21, Rule 58, C.P.C. 2. The short facts are: The first respondent filed a suit against the second respondent for arrears of lease amount and has obtained a money decree. In execution of the same, the first respondent is bringing the property concerned in the execution petition for sale. While so, the appellant, the daughter of the second respondent, has filed the petition in E.A.No.135 of 1992 under 0.21, Rule 58, C.P.C. making a claim over the property concerned in the execution proceedings which was attached and brought to sale. The said application was opposed by the first respondent/decree-holder. After hearing the parties, the learned Subordinate Judge dismissed the claim petition. Aggrieved by the same, the claimant has come forward with the above appeal. 3. Learned counsel appearing for the appellant would submit that the appellant is the daughter of the second respondent. Under Sec.29-A of the Hindu Succession Act, 1956, as amended by Tamil Nadu Act 1 of 1990, now the appellant is entitled to a share in the suit property and as such her share ought to have been declared and attachment over that share ought to have been raised by the court below. But the court below has misconstrued the entire provisions of law and has come to the conclusion that the appellant is not entitled to a share in the property on two premises, namely, (1) The appellant was given in marriage prior to the date on which the amendment came into effect, namely on 23. 1989 and (2) By reason of the theory of pious obligation, i.e. the appellant’s share is also bound by the decree which was not incurred for immoral purposes. He contended that the reasonings given by the court below are not correct. 4. Per contra, learned counsel for the first respondent would submit that when the appellant wants to claim the benefits of Sec.29-A, it is for the appellant to prove that she got married only after 23. 1989; but she has not proved it and as such she is not entitled to make any claim. 4. Per contra, learned counsel for the first respondent would submit that when the appellant wants to claim the benefits of Sec.29-A, it is for the appellant to prove that she got married only after 23. 1989; but she has not proved it and as such she is not entitled to make any claim. He would further submit that by virtue of the aforesaid amendment, the right of a daughter is placed on a par with the right of a son. While so, when the share of a son is liable for any debt which was not incurred for immoral or illegal purposes, the share of a daughter would also be bound by the debt which was not incurred for illegal for immoral purposes and as such her share is liable for the decree debt. 5. I have carefully considered the submissions made by the rival counsel. The appellant is claiming a share in the suit property as the daughter of the second respondent by virtue of Sec.29-A of the Hindu Succession Act. In the counter filed by the first respondent, in para 8, it is affirmatively stated that the appellant was given in marriage in the year 1984 or 1985 and so she is not entitled to any share in the property attached and brought to sale. In the affidavit filed by the appellant, in the court below, there is no allegation that she was not given in marriage prior to the material date. While so, when a positive allegation is made that she was given in marriage in 1984 or 1985, it is the duty of the appellant to prove that she is entitled to the benefits of the said section. But no proof is forthcoming to that effect. While so now she cannot claim the benefits of Sec.29-A. 6. Regarding the liability of a daughter for a debt incurred by her father, which is not for illegal or immoral purposes, in view of the language of Sec.29-A. I am inclined to accept the submissions made by Mr.K.Sreekumaran Nair, learned counsel appearing for the first respondent. While so now she cannot claim the benefits of Sec.29-A. 6. Regarding the liability of a daughter for a debt incurred by her father, which is not for illegal or immoral purposes, in view of the language of Sec.29-A. I am inclined to accept the submissions made by Mr.K.Sreekumaran Nair, learned counsel appearing for the first respondent. Sec.29-A is relevant for our purpose and it is extracted below: "29-A. Equal rights to daughter in coparcenary property: Notwithstanding anything contained in Sec.6 of this Act, (i) in a joint Hindu family governed by Mitakshara Law, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as a son and have the same rights in the coparcenary property as she would have had if she had been a son, inclusive of the right to claim by survivorship; and shall be subject to the same liabilities and disabilities in respect thereto as the son." The language of the section is so clear that it is manifest that the share of a daughter cannot be on a better footing than that of a son in coparcenary property. It has been clearly and without any ambiguity stated in the section itself that the daughter shall have the same rights in the coparcenary property as a son. While so, whenever a share of a son is liable for any debt, which is not for immoral and illegal purpose, the share of a daughter is equally liable for such debt. In the instant case, the suit was laid by the Town Panchayat, Ponmani Kanyakumari District (first respondent herein) for arrears of rent. By no stretch of imagination can it be said that it was a debt incurred for any illegal or immoral purpose. As I said earlier, the share of the daughter, the appellant herein, is liable for such a decree debt. Thus, on both the grounds the claim of the appellant cannot be sustained and the court below is correct in rejecting the claim and I agree with the same. Consequently this appeal which has got no merits shall stand dismissed.