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2007 DIGILAW 876 (MAD)

Jothi and another v. Kumaravel

2007-03-09

S.ASHOK KUMAR

body2007
Judgment : 1. Aggrieved by the dismissal order of the learned Subordinate Judge, Nammakkal, filed by the revision petitioners/plaintiffs under Order 6, Rule 17 C.P.C. seeking permission to amend the Plaint, this revision is filed. 2. The brief facts of the case are as follows: (i) According to the revision petitioners, they are sisters and the respondent is their brother. They are the children of one Palaniappa Gounder. The suit properties are the ancestral properties of their father, acquired under registered Partition Deed dated 20.6.1967, entered into with his father and brothers. The said Palaniappa Gounder died on 112. 2004. The mother of the petitioners pre-deceased their father Palaniappa Gounder. The petitioners are entitled to a share in the suit properties, which a re ancestral in character. The respondent is also entitled to a share. since the respondent was not amenable for an amicable partition and was claiming exclusive right on the basis of an alleged settlement in his favour, the petitioners filed the Suit for partition in O.S. No.33 of 2005 on the file of the Subordinate Judge’s Court at Namakkal on 2. 2005 claiming 1/6th share each. (ii) According to the revision petitioners as per the Hindu Succession (Amendment) Act, 39 of 2005, which came into force from 9. 2005, the petitioners are entitled to 1/3rd share each in the suit properties. Since the Suit was filed on 2. 2005 itself, the petitioners were entitled to claim only 1/6th share each on that date. Now as per Section 6 of the Hindu Succession Act, 1956, as amended by Act 39 of 2005, with effect from 9. 2005 the petitioners are each entitled to claim 1/3rd share over the suit properties. Therefore, the petitioners filed Application in I.A. No.1710 of 2005 seeking amendment of plaint to the effect that they are each entitled to claim 1/3rd share. (iii) However, by the impugned order dated 1. 2007, the learned Subordinate Judge, Namakkal dismissed the Application for amendment. Aggrieved by the same, the present revision has been filed. .3. Mr. P. Valliappan, learned counsel appearing for the revision petitioner contended that the learned trial Judge has failed to consider the scope of Section 6 of the Hindu Succession Act, 1956, as amended by Central Act 39 of 2005 which came into effect from 9. Aggrieved by the same, the present revision has been filed. .3. Mr. P. Valliappan, learned counsel appearing for the revision petitioner contended that the learned trial Judge has failed to consider the scope of Section 6 of the Hindu Succession Act, 1956, as amended by Central Act 39 of 2005 which came into effect from 9. 2005 since as per the said provision of law, the petitioners would be entitled to a greater share than what was claimed atthe time of filing of the plaint on 2. 2005 i.e ., prior to amendment and that is the reason why the petitioners sought for the proposed amendment. Further, according to the learned counsel, the proposed amendment would not alter the nature and character of the Suit. He also contended that while deciding the amendment Application, the trial Court should not consider the merits of the proposed amendment as it is the well settled law that Courts should not record findings on the merits of the amendments which course has to be exercised only during the trial of the Suit. Learned counsel also cited the decision of the Apex Court in Sampath Kumar v. Ayyakkannu and another, 2002 (4) CTC 189, and also Full Bench decision of this Court in Hi Sheet Industries v. Litelon Ltd., Hosur, 2007 (1) MLJ 320 , in support of his contention that even after commencement of trial, amendments could be made to the plaint taking notice of the subsequent events in order to shorten the litigation and also for the porposition of law that Courts should not record the finding on the merits of the amendment as it should be done only during the trial of the Suit. .4. Admittedly, by enactment of Tamil Nadu Act 1/90, the State Government inserted Section 29-A giving equal rights to daughters in coparcenary property. Thereafter in 2005, the Central Government has also enacted similar amendment by amendment Act 39/2005 which came into force on and from 9. 2005. It is also the well settled law that if there is a inconsistency between the State enacted Law and Parliament enacted Law (Central Law), the former Act shall be void to the extent of its conflict with the latter Act on the same subject by Repeal and implication. 2005. It is also the well settled law that if there is a inconsistency between the State enacted Law and Parliament enacted Law (Central Law), the former Act shall be void to the extent of its conflict with the latter Act on the same subject by Repeal and implication. Curiously, in this case both the State Act as well as the Central ct provides the same relief i.e ., enabling a daughter of the Hindeu Mitakshara family to claim equal rights in the coparcenary properties. Therefore it is clear that from the date of commencement of the Tamil Nadu Act 1/90, till date of commencement of the Central Act 39/2005, during the interregnum period, the State Act was in force and on and from 9. 2005, the same relief can be claimed by invoking the Central Act i.e., Section 6of the Central Act 39/2005. But, a perusal of the order of the impugned order would show that the learned trial Judge has come to the conclusion that Section 29-A of the Tamil Nadu Act 1/90 has not been specifically or impliedly repealed by the Central Act 39 of 2005. Further, according to the learned trial Judge even assuming Section 6 of the Central Act prevails over Section 29-A of the State Act 1/90, the same does not confer any rights on the petitioners since as on that date they were alre ady given in marriage. In the view of the learned trial Judge, the words “on and from the commencement of the Hindu Succession (Amendment) Act 2005” and the subsequent words “in a joint Hindu Family” and “the daughter of a co-parcener” denotes and gives a plain meaning that the daughter of a coparcener to claim benefit under Section 6 of the Central Act should be a member i.e. , an unmarried daughter of that Joint Hindu Family as on 9. 2005. The above findings of the learned Trial Judge is unwarranted in view of the ruling of the Apex Court cited by the learned counsel for the revision petitioners in Sampath Kumar v. Ayyakkannu and another, 2002 (4) CTC 189, and also Full Bench decision of this Court in Hi Sheet Industries v. Litelon Ltd., Hosur, 2007 (1) MLJ 320 , that while deciding the amendment Application, the subsequent events shall be taken note of an the Courts should not traverse on the merits of the amendment sought for. 5. As regards the applicability of amended Section 6 of the Hindu Succession Act, 1956 or Section 29-A of the Tamil Nadu Amendment Act 1 of 1990, whether the Tamil Nadu Act 1 of 1990 has been repealed by the Central Act 35 of 2005 or not, or whether the succession is intestate succession or succession by survivorship, and at the time of coming into force of the Central Act whether the revision petitioners were already married and by virtue of the same whether they are debarred from claiming equal share in the coparcenary property are all questions to be decided during the course of trial by letting in evidence both oral and documentary. 6. As regards the proviso to Rule 17 of Order VI C.P.C., since the Central Act 39/2005 came into force on and from 9. 2005 and the Plaint has been instituted as early as 2. 2005 and therefore it is clear that the petitioners/plaintiffs could not have claimed such relief at the time of institution of the Suit. Therefore as rightly contended by the learned counsel for the revision petitioners, amendment of pleadings even after commencement of trial could be allowed taking notice of the subsequent events. 7. In view of the above, as rightly contended by the learned counsel for the revision petitioners, if the amendment is allowed then the petitioners would be entitled to claim 2/3rd share and the value of the Suit would get enhanced to and in such even the pecuniary jurisdiction of the Subordinate Court at Namakkal is ousted and the proper Court would be the District Court at Namakkal. Therefore it is for the trial Court to value the suit properly and transfer the case to the appropriate Court which is having the pecuniary jurisdiction. 8. It is also pertinent to mention that since where is already a direction by this Court to dispose of the Suit within three months, the trial Court is directed to dispose of the Suit within three months from the date of receipt of a copy of this order on the said Suit being transferred and renumbered. 9. With the above observations, this C.R.P. is allowed. Consequently, connected M.P. is closed. No costs.