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2000 DIGILAW 874 (MAD)

Sarasu v. Baskaran

2000-08-31

K.P.SIVASUBRAMANIAM

body2000
ORDER: This revision is directed against the order of the learned Subordinate Judge, Tindivanam, in I.A.No.421 of 1992 in O.S.No.166 of 1979. The said I.A. was filed by the revision petitioner/12th defendant in the suit under O.20, Rule 18 read with Sec.151, C.P.C. to set aside the judgment and decree dated 3.3.1987. 2. The petitioner contended that the plaintiff had prayed for a declaration and an injunction and that the petitioner was a minor and did not know anything about the proceedings. About seven years prior to the filing of this petition, she had received summons after she had attained majority. At that time, defendants 1, 2, 3, 7 and 8 under whose care she was living, had promised her to attend to the proceedings on her behalf also. The said defendants being her brothers and she being a woman who was not acquainted with such worldly matters had to be belief in them. Recently, the respondents are trying to forcibly occupy the suit premises by excluding her with police aid. Thereafter, she had enquired into the matter with the assistance of her counsel and she came to know that the suit had been decided ex parte against her and all her brothers have obtained a decree in their favour in a collusive manner by excluding her. The petitioner further contended that by virtue of an amendment to the Hindu Succession Act in the year 1989, she had become a member of the family and hence, entitled to equal share. She was unable to raise her objection to the preliminary decree as she had no rights then. Now as a result of the change in the law of succession, she is entitled to state her objections in a written statement. She is entitled to one-fourth share in both ‘A’ and ‘B’ schedule properties and the Court is entitled to take note of the amended provisions under the Hindu Succession Act and to grant a decree accordingly by readjusting the shares in the preliminary decree. It was further pleaded that as a result of the said amendment the judgment and decree had become null and void and inoperative. 3. In the counter filed by the plaintiff, the maintainability of the petition was disputed on several grounds. The petitioner ought to have filed an appeal against the decree. It was further pleaded that as a result of the said amendment the judgment and decree had become null and void and inoperative. 3. In the counter filed by the plaintiff, the maintainability of the petition was disputed on several grounds. The petitioner ought to have filed an appeal against the decree. There was no basis or truth in the contention that the other defendants had colluded and betrayed her. The present petition has been filed only at the instigation of defendants 1, 2, 3, 7 and 8. Not only the limitation for filing the appeal had elapsed long back but the present petition to set aside the decree was also highly barred by time. The preliminary decree proceedings concluded only long after the petitioner had attained majority and the prayer of the petitioner was also barred by res judicata and the petitioner was estopped from raising any issue as against the respondent. Even assuming that the petitioner would also be entitled to any rights under the amended Hindu Succession Act, the said issue cannot be raised after passing of the preliminary decree. 4. The trial Court without going into any other issues, held that only an appeal should have been filed against the preliminary decree and that the present petition was not maintainable. With the result, I.A.No.421 of 1992 was dismissed and hence the present revision. 5. Mr.S.Balasubramanian, appearing for the petitioner/ respondent very strenuously contended that with the statutory declaration of female members as having equal rights with the male coparceners by virtue of Tamil Nadu Act 1 of 1990, it was open to the party who is statutorily recognised to claim a share, to seek for appropriate relief. He would also contend that being a lady, the petitioner had depended upon her brothers who had badly let her down. The Tamil Nadu Act 1 of 1990 amending and introducing Sec.29-A in the Hindu Succession Act was a beneficial legislation and hence the Courts have to enforce the benefits intended under the Act in favour of the petitioner and any interpretation of the provisions should reflect the objects sought to be achieved under the Act. He would further contend that passing of the preliminary decree cannot be a bar to do justice between the parties. 6. He would further contend that passing of the preliminary decree cannot be a bar to do justice between the parties. 6. Learned counsel for the petitioner also relies on the judgment of the Supreme Court in State of Maharashtra v. Narayana Rao, A.I.R. 1985 S.C. 716. In that case, the Supreme Court dealt with the effect of right of a female member who inherits an interest in the joint family property as provided under Sec.6 of the Hindu Succession Act vis-a-vis its effect on the provisions of Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961. It was held by the Supreme Court that if the said female member files a suit for partition expressing her willingness to go out of the family, she would be entitled to get both the interest she has inherited in the share which should have been notionally allotted to her. But the legal fiction of the notional partition cannot result in treating her as having ceased to be a member of the family so as to affect the provisions of the ceiling Act. She cannot be treated to be a separate member so as to be entitled to a separate unit of ceiling area and that all the members are entitled to only one unit of ceiling area. Therefore, according to learned counsel, while considering the effect of a regulatory and beneficial legislation, full effect should be given to the objects of the Act. 7.Per contra, Mr.R.Subramanian, would seek to rely on the judgment of the Supreme Court in Gurupad v. Hirabai, A.I.R. 1978 S.C. 1239, in which also the Supreme Court dealt with the scope of Sec.6 of the Hindu Succession Act. 8. Having regard to the scope of the present petition, it is not necessary to consider the scope of petition filed under sec.6 and the effect of Sec.6 of the Hindu Succession Act and the theory of notional partition as would arise for consideration under the said provision. 9. In the present case, it is not disputed that a final decree has not been passed. A perusal of the prayer in the affidavit filed in support of the petition shows that the prayer for setting aside the decree is mainly based on two grounds. (i) A decree has been obtained behind her back by the other members of the family in collusion by duping her. A perusal of the prayer in the affidavit filed in support of the petition shows that the prayer for setting aside the decree is mainly based on two grounds. (i) A decree has been obtained behind her back by the other members of the family in collusion by duping her. (ii) Tamil Nadu Act 1 of 1990 bestows upon her certain inviolable legal rights to have a share in the property. 10. I am not inclined to accept the first ground that the decree had been obtained behind the back of the petitioner. She was not only a party to the suit and had received summons after becoming a major, but had also failed to let in any evidence to sustainable her contention or collusion as between the parties. 11. But as regards the second ground I am inclined to hold that the claim of the petitioner appears to be legally acceptable. She was not only a party to the suit and had received summons after becoming a major, but had also failed to let in any evidence to sustainable her contention or collusion as between the parties. 11. But as regards the second ground I am inclined to hold that the claim of the petitioner appears to be legally acceptable. By virtue of Tamil Nadu amendment to the Hindu Succession Act, 1956, Sec.29-A was introduced into the Hindu Succession Act as follows: "29-A. 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 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; (ii) at a partition in such a joint Hindu family the coparcenary property shall be divided as to allot to a daughter the same share as is allottable to a son: Provided that the share which a pre-deceased son or a pre-deceased daughter would have got at the partition if he or she had been alive at the time of the partition shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter: Provided further that the share allottable to the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, if such child had been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or of the pre-deceased daughter, as the case may be; (iii) any property to which a female Hindu becomes entitled by virtue of the provisions of Clause (i) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force, as property capable of being disposed of by her by will or other testamentary disposition; (iv) nothing in this Chapter shall apply to a daughter married before the date of the commencement of the Hindu Succession (Tamil Nadu Amendment) Act, 1989; (v) nothing in Clause (ii) shall apply to a partition which had been effected before the date of the commencement of the Hindu Succession (Tamil Nadu Amendment) Act, 1989." 12. The date of commencement of the Act is 25.3.1989 and hence there is no dispute over the fact that since the petitioner was not married as on that date, she was entitled to a share in the coparcenary property. But as regards partitions effected prior to the amendment, such partitions were saved and not affected by the amendment as provided under Clause (v) of Sec.29-A of the Act. As regards partition through Court, in Sundarambal v. Deivanayagam, (1991)2 M.L.J. 199 , the question arose as to whether the passing of a preliminary decree would disentitle the female member to claim the benefits of the Act. M.Srinivasan, J. as he then was, held that with the passing of the preliminary decree for partition, the shares of the parties became definitely quantified and crystallised and hence the benefits of the Amendment Act cannot be claimed. 13. But in Sai Reddy v. S.Narayana Reddy, (1991)3 S.C.C. 647 , the Supreme Court expressed a contrary view while considering the Sec.29-A of the Hindu Succession Act as introduced by the State of Andhra Pradesh by virtue of an Amendment act. The provision as introduced by the State of Andhra Pradesh is in pari materia and the same as the Tamil Nadu Amendment Act. The Supreme Court held that as far as the partition effected through Court, it must be determined on the basis of the date of passing of the final decree by metes and bounds. 14. In M.Shanmugha Udayar v. Sivanandam, (1993)2 M.L.J. 417: A.I.R. 1994 Mad. 123, a subsequent judgment of a Division Bench of this Court also, it was held that a daughter not impleaded at the appellate stage after passing of the preliminary decree would be entitled to a share. The judgment of the Supreme Court in Sai Reddy v. S.Narayana Reddy, (1991)3 S.C.C. 647 , cited above, was followed. 15. Therefore, on the admitted position that in the present case, only a preliminary decree had been passed and a final decree was yet to be passed, the petitioner will be entitled to a share. 16. The objection raised by the respondent on the ground of limitation cannot also be sustained. 15. Therefore, on the admitted position that in the present case, only a preliminary decree had been passed and a final decree was yet to be passed, the petitioner will be entitled to a share. 16. The objection raised by the respondent on the ground of limitation cannot also be sustained. When once it is agreed that a preliminary decree would become enforceable only on the passing of a final decree and the affected party had approached the Court before passing of the final decree, there is no question of any limitation to raise the said question. 17. In the result, the revision petition is allowed and the petition filed by the revision petitioners in I.A.No.421 of 1992 is allowed. No costs. Consequently, connected C.M.P. is closed as unnecessary.