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2012 DIGILAW 659 (MAD)

Maniammai v. Kantharoobi Ammal

2012-02-07

V.PERIYA KARUPPIAH

body2012
JUDGMENT ( 1. ) THIS appeal is directed against the judgment and decree passed by the First Appellate Court in A.S.No.7 of 2004 dated 26.11.2004 in confirming the judgment and decree passed by the trial court in O.S.No.146 of 1998 dated 27.10.2003 in passing preliminary decree for partition. ( 2. ) THE appellant herein is the plaintiff and the respondents are the defendants before the trial court. ( 3. ) THE case of the plaintiff before the trial court would be as follows:- THE plaintiff and the defendants are the legal heirs of late K.M.Selai Gowder. THE defendants 1 and 2 are the wives, the plaintiff and the 3rd defendant are the daughters, the 4th defendant and the husband of the 5th defendant and father of the defendants 6 and 7 namely K.S.Rajamani are the sons of Selai Gowder. THE said Selai Gowder died intestate on 29.09.1990 leaving behind the plaintiff and the defendants as his legal heirs. THE husband of 5th defendant namely K.S.Rajamani died on 18.04.1995 leaving the defendants 5 to 7 as his legal heirs. THE suit properties are jointly belonging to the plaintiff and the defendants. Some of the properties are ancestral and some of the properties are self-acquired properties of Selai Gowder and late Selai Gowder purchased the land in R.S.No.8/1 in Udhagamandalam town situated at Ooty and built a house consisting of two portions bearing Door Nos.72-A and 72-D and put the plaintiff in one of the said portions namely Door No.72-D and from the date of possession, the plaintiff is in possession and enjoyment of the same. One of the wives namely Kantharoobi Ammal, the 1st defendant herein with the consent of all the legal heirs built a house in remaining part of the vacant land in the said Survey number and put 3rd defendant in possession and enjoyment of the said house with the consent of all the legal heirs. Still there was a vacant site to an extent of 520 sq.ft., and the defendants 1 to 4 released their respective share in the said vacant site, in favour of the plaintiff leaving 1/5th share to the defendants 5 to 7. ( 4. ) SIMILARLY, another release deed was executed by the defendants 1, 2 and 4, thereby, they released their share in the undivided share in the house bearing Door No.110/A in favour of the third defendant. ( 4. ) SIMILARLY, another release deed was executed by the defendants 1, 2 and 4, thereby, they released their share in the undivided share in the house bearing Door No.110/A in favour of the third defendant. The third defendant is in possession and enjoyment of the said property leaving 1/5 share in the land in favour of the defendants 5 to 7. Apart from those properties, the remaining properties of Sela Gowder are in joint possession and enjoyment of the plaintiffs and the defendants. The said joint possession by the parties are no longer conducive and therefore, the plaintiff issued a legal notice to the defendant through the advocate on 01.10.1997calling them to enter into an agreement of partition and divide the properties among themselves. Having received the said notice, the defendants failed to enter an agreement for partition and to execute necessary partition deed. The defendants 1 and 2 who are the wives of K.M.Selai Gowder are jointly entitled to 1/5 share. The plaintiff, the defendants 3 and 4 are each entitled to 1/5 share. The defendants 5 to 7 are jointly entitled to 1/5 share. Therefore, the plaintiff may be allotted 1/5 share in the suit properties and the preliminary decree may be passed in her favour. ( 5. ) THE case of the 3rd defendant would be as follows:- THE 3rd defendant is always willing to have the property partitioned in between parties. It was the 6th defendant, who was not co-operating for effective partition of the suit properties. THE 3rd defendant is agreeing for partition and allotment of her share as sought for in the plaint. ( 6. ) THE contentions of the defendants 5 to 7 are as follows:- THE properties mentioned in schedule 1 and 2 are the ancestral properties and the properties described in schedule 3 were acquired out of the income derived from the ancestral nucleus and by joint exertion and therefore, the 3rd schedule of the property would also become joint family property. Late Selai Gowder and his two sons namely Rajamani and 4th defendant Bojaraj constituted an undivided Hindu Joint Family. THE remaining house properties were constructed by Selai Gowder, out of the income derived from ancestral nucleus and by the contribution of his two sons who were the earning members. Late Selai Gowder and his two sons namely Rajamani and 4th defendant Bojaraj constituted an undivided Hindu Joint Family. THE remaining house properties were constructed by Selai Gowder, out of the income derived from ancestral nucleus and by the contribution of his two sons who were the earning members. THE plaintiff and the 3rd defendant were permitted to occupy Door No.72-D and Door No.110-A respectively and therefore, they have no right over the said premises. THE plaintiff and the defendants 2 to 4 are not entitled to 1/5 share in the suit schedule properties much less in the vacant site measuring 520 feet. THE plaintiff got married in the year 1973 and the 3rd defendant also married in the year 1979 or 1980. THErefore, they cannot claim equal share in the properties on par with the 4th defendant and the legal heirs of Rajamani namely, defendants 5 to 7. THE plaintiff would at best be entitled to 1/15 share and the 3rd defendant also entitled to a similar share and the defendants 5 to 7 would collectively get 6/15 share. THE defendants 1 to 3 have no right to make any claim to the residential properties described in schedule 2 and 3. THE suit is bad for partial partition, since all the joint family properties were not included beyond in the suit. THE tea estate belonging to the family to an extent of 2.10 acres in S.No.20, Kandharai Village, was not shown. THE defendant is entitled to 6/15 share to which he is paying the Court fee. In other aspects, the suit may be dismissed. ( 7. ) THE trial Court had framed necessary issues and had entered trial. In the course of trial, the plaintiff examined herself as PW1 and produced Exs.A1 to A19. On the side of the defendant, the 5th defendant was examined as DW1 and Exs.B1 to B4 were admitted in evidence. After appraising the evidence adduced on either side, the trial Court had come to the conclusion of preliminarily decreeing the suit for 1/15 share in favour of the plaintiff and 1/15 share each to the defendants 1 to 3 and the defendants 5 to 7 collectively each entitled to 6/15 share in the suit properties. Aggrieved upon the quantum of share decreed in favour of the plaintiff, she preferred an appeal against the said preliminary decree and judgment in A.S.No.7 of 2004. Aggrieved upon the quantum of share decreed in favour of the plaintiff, she preferred an appeal against the said preliminary decree and judgment in A.S.No.7 of 2004. THE First Appellate Court had heard the appeal and had confirmed the judgment and decree passed by the trial court. ( 8. ) THE plaintiff having aggrieved over the judgment and decree passed by the First Appellate Court, has preferred the present second appeal. ( 9. ) ON admission, this Court had formulated the following substantial questions of law for determination in the appeal:- "1. Whether the courts below were right in presuming that the property were ancestral property over looking the documents namely Ex.A9 to Ex.A13 which stands in the name of Selai Gowder in his personal capacity without reference to any joint family nucleus 2. Whether courts below were right in finding that the property inherited by Selai Gowder from his father is an ancestral property when admittedly there is no lota of evidence that father of Selai Gowder inherited the said property ancestrally 3. Whether courts below were right in allotting 1/15 share to the appellant when assuming without admitting that the properties are ancestral when the sons of Selai Gowder have relinquished their shares to provide an equal share to their sisters and such relinquishment is binding on respondents 5 to 7 " ( 10. ) HEARD Mr.B.Ramamurthy, learned counsel for the appellant/plaintiff and Mrs.Elambarathy, learned counsel for the respondents 5 to 7. No appearance for the respondents 1 to 4. ( 11. ) THE learned counsel for the appellant would submit in his argument that the properties were acquired by father Selai Gowder and he had kept the said properties as his self-acquired properties and on his death, 1/5 share in the suit property would devolve upon the plaintiff. He would further submit that the appellant was in possession and enjoyment of Door No.72-D of the father even during his life time and in possession and enjoyment of the suit property till today. He would further submit that the members of the plaintiff's family have executed a registered Sale Deed, dated 02.05.1997 recognising the character of the property as self-acquired property of appellant's father, Selai Gowder. He would further submit that the members of the plaintiff's family have executed a registered Sale Deed, dated 02.05.1997 recognising the character of the property as self-acquired property of appellant's father, Selai Gowder. He would further submit that the properties were belonging to Selai Gowder as his absolute properties and therefore, the plaintiff and the defendants, who are the legal representatives of the deceased Selai Gowder are each entitled to 1/5 share. He would also submit that the finding of the trial court as well as First Appellate Court that there was no proof for having joint family nucleus for providing money to purchase the properties in order to characterise them as joint family properties. He would further submit that the defendants 5 to 7 alone are opposing the partition, when other defendants have accepted the same. He would further submit that the self-acquired property of the father were jointly possessed and enjoyed by all the legal representatives, even during the life time of the deceased son Rajamani, which would bind the defendants 5 to 7 also. He would further submit that the house constructed by the Selai Gowder bearing Door No.72-A, 72-D and 110-A were given to the daughter of Selai Gowder, has not been proved. He would also submit that the 5th defendant is estopped from withdrawing his consent. He would further submit that the burden of proving the character of the property as joint family property is heavily upon the person who asserts the same. THE documents produced in Exs.A16 and A18 were during the life time of Rajamani, the husband of the 5th defendant and the father of the defendants 6 and 7. He would further submit that the defendants 5 to 7 are only entitled to the properties, that Rajamani was entitled to and therefore, they are estopped from contending so by the act of the said Rajamani. THE placing of onus on the plaintiff to prove the properties as self-acquired properties cannot be a correct position of law. He would also submit that the rejection of Exs.A14 and A15 are not sustainable. Even though the properties are considered as joint family properties, the widow of coparceners have relinquished their undivided share in the joint family properties. He would also submit that the Courts below are in a wrong notion that coparcener cannot release his undivided share. He would also submit that the rejection of Exs.A14 and A15 are not sustainable. Even though the properties are considered as joint family properties, the widow of coparceners have relinquished their undivided share in the joint family properties. He would also submit that the Courts below are in a wrong notion that coparcener cannot release his undivided share. THE recent amendment of Hindu Succession Act and the notion of Section 29-A would entitle the plaintiff to get equal share and therefore, the judgment and decree passed by the trial court as well as the First Appellate Courts are not in any way considering the evidence and the proposition of law and therefore, the judgment and decree passed by the trial court as well as First Appellate Court in granting only an 1/15 share in favour of the plaintiff may be set aside and be modified as 1/5 share in the suit properties. THE learned counsel for the appellant would cite a judgment of Hon'ble Apex Court reported in 2006 (8) SCC 581 (Sheela Devi v. Lal chand) for the position of law regarding the devolution of right in the co-parcenery property. Similarly, learned counsel would cite a judgment of Hon'ble Apex Court reported in (2011) 6 SCC 462 (Prema v. Nanje Gowda and others) for the principle that the daughter's equal right in the coparcenery property under the provisions of amended Hindu Succession Act 2005. He would further submit in his argument that the judgment of Hon'ble Apex Court reported in 2011(9) SCC 788 (Ganduri Koteshwaramma v. Chakiri Yanadi) is also for the same principle of law. THErefore, he would request the Court to allow the appeal as prayed for. ( 12. ) THE learned counsel for the defendants 5 to 7 would submit in his argument that the relationship between the parties are admitted and the only point to be seen is whether Selai Gowder was having self-acquired properties or they are joint family properties. He would further submit that the said character of the property will decide the share as sought for by the parties. He would further submit that the said character of the property will decide the share as sought for by the parties. He would further submit that if the property is considered to be the ancestral property, the coparceners alone will succeed to the estate of the deceased coparceners and therefore, the sons namely 4th defendant and the husband of the 5th defendant namely Rajamani will share with the father to get 1/3 share each in the properties and on the death of the father Selai Gowder his 1/3rd share will be inherited by the legal heirs of the said Selai Gowder. THErefore, the daughters of Selai Gowder would get each 1/15 share and the two wives would be jointly entitled to 1/15 share and the 4th defendant and the defendants 5 to 7 would collectively get 6/15 shares each in the suit properties. He would also submit that the plaintiffs claim for 1/5 share by stating the suit properties are self acquired properties, however, it would not ensure to the plaintiff as it was not proved. He would further submit that the enforcement of Act 1 of 1990 which amended the Hindu Succession Act, will not apply in this case since the marriage of the plaintiff as well as 3rd defendant were admittedly prior to the promulgation of the Act 1 of 1990 (i.e.) 25.3.1989. He would therefore, request the Court that the judgment and decree passed by the Courts below are alright and the shares declared in favour of the parties are in accordance with law and therefore, the appeal preferred by the appellant/plaintiff may be dismissed. ( 13. ) I have given anxious thoughts to the arguments advanced on either side. ( 14. ) THE suit was filed by the appellant/plaintiff seeking for partition and separate possession of her 1/5 share in the suit properties. THE 3rd defendant also paid Court fee for allotment of her share in the suit property. According to the submission of the plaintiff the suit property originally belonged to the joint family of the father Selai Gowder. It is also the case of the plaintiff that the said Selai Gowder was also having self acquired properties which are described in the 3rd schedule. According to the submission of the plaintiff the suit property originally belonged to the joint family of the father Selai Gowder. It is also the case of the plaintiff that the said Selai Gowder was also having self acquired properties which are described in the 3rd schedule. After appraising the evidence adduced on either side, the trial court had come to the conclusion that the properties mentioned in schedule 1 and 2 were ancestral properties and the properties described in schedule 3 were purchased by the said Selai Gowder out of the income derived from the ancestral properties and therefore, they are also deemed to be the properties of Hindu Joint Family consisting of Selai Gowder, 4th defendant and one K.S.Rajamani who is the deceased husband of 5th defendant and the father of the defendants 6 and 7. THE said conclusion was reached by the trial Court, based on the income from the joint family properties and he had no other avocation except agriculture. It is not disputed that the said Selai Gowder purchased the properties through Exs.A9 and A.10 respectively on 11.09.1962 and 9.11.1962. Similarly, the properties were also purchased by the said Selai Gowder through Ex.A11 and A12 dated 17.03.1987 as shown in plaint, 1 and 2 schedules. THEre was no avocation for the said Selai Gowder and therefore, the money applied for the purchase of schedule B properties would be from the income derived from the items 1 and 3 of plaint schedule. THE First Appellate Court also came to the conclusion that there was no contra evidence to the evidence adduced by the plaintiffs and therefore, I could see that this Court cannot interfere with the finding of facts by the trial court which was confirmed by the First Appellate Court. THErefore, the properties described in the plaint schedule are the ancestral properties of Selai Gowder to which the joint family was in possession and enjoyment. ( 15. ) THE devolution of joint family properties on the death of one of the coparceners would bring a notional partition with the remaining coparcener and the legal heirs of the deceased coparcener would inherit the properties belonging to the deceased coparcener. Admittedly, the father Selai Gowder, 4th defendant and the husband of the 5th defendant namely K.S.Rajamani, were the three joint family members own the entire property. Admittedly, the father Selai Gowder, 4th defendant and the husband of the 5th defendant namely K.S.Rajamani, were the three joint family members own the entire property. All the 3 coparceners will get each 1/3rd share on the notional partition and the share of Selai Gowder would devolve upon the legal heirs of the father on his intestate death. THE father Selai Gowder died intestate on 29.09.1990. THErefore, the 1/3rd share of Selai Gowder alone has to be divided among the legal representatives of Selai Gowder on his death and for that, Section 8 of Hindu Succession Act would apply. THE heirs of Selai Gowder would be, his two wives and 2 sons and 2 daughters and since one of the son Rajamani was dead subsequent to the death of the father Selai Gowder his legal heirs viz., defendants 5 to 7, will come under the son Rajamani to inherit his share. THErefore, five such branches have to divide the 1/3 share belonging to father Selai Gowder. If it is calculated, the plaintiff, defendants 3 and 4 and defendants 5 to 7 on one part collectively take 1/15 share each, in the suit properties. Similarly, two wives of the deceased Selai Gowder would collectively take 1/15 share. THEre was no infirmity in having two wives since those two wives were married even prior to 1949 before the promulgation of Bigamy Prevention Act. THErefore, the plaintiff would be entitled to only 1/15 share whereas the 4th defendant would get 1/3 + 1/15 = 6/15 share and the branch of Rajamani,(i.e.) defendants 5 to 7 are collectively entitled to a similar share of 6/15. THE 3rd defendant and the wives of Selai Gowder as one part would take 1/15 share each in the suit properties. THE arguments advanced by the learned counsel for the appellant that the Amendment Act came in the year 2005 would enlarge the share of the plaintiff as daughter, since the daughters were given equal rights with the sons in the ancestral properties also. THErefore, he has drawn the attention of the Court to give benefit of the said amendment Act of 2005 and under Section 29 A of Hindu Succession Act. For that, he had placed the judgment of Hon'ble Apex Court reported in 2011(9) SCC 788 (Ganduri Koteshwaramma v. Chakiri Yanadi) and the relevant paragraphs would be thus:- "11. ..... THErefore, he has drawn the attention of the Court to give benefit of the said amendment Act of 2005 and under Section 29 A of Hindu Succession Act. For that, he had placed the judgment of Hon'ble Apex Court reported in 2011(9) SCC 788 (Ganduri Koteshwaramma v. Chakiri Yanadi) and the relevant paragraphs would be thus:- "11. ..... THE legislature has now conferred substantive right in favour of the daughters. According to the new Section 6, the daughter of a coparcener becomes a coparcener by birth in her own rights and liabilities in the same manner as the son. THE declaration in Section 6 that the daughter of the coparcener shall have same rights and liabilities in the coparcenary property as she would have been a son is unambiguous and unequivocal. Thus, on and from 9.9.2005, the daughter is entitled to a share in the ancestral property and is a coparcener as if she had been a son." ( 16. ) YET another judgment of Hon'ble Apex Court reported in (2011) 6 SCC 462 (Prema v. Nanje Gowda and others) was also drawn for the support of the appellant. The relevant passage would also run thus:- "11. The scope of Section 29-A which was inserted in the Act by Andhra Pradesh Act 13 of 1986 and which is in pari materia with Section 6-A of Karnataka Act 23 of 1984 was considered by the learned Single Judge of the Andhra Pradesh High Court in S.Narayana Reddy v. S.Sai Reddy. The facts of that case were that the preliminary decree passed by the trial court in a partition suit was confirmed by the High Court with a direction that while passing final decree, the trial court shall make appropriate provision for maintenance and marriage expenses of Defendants 5 to 9 and maintenance of the third defendant shall be borne equally by each of the plaintiffs, first defendant and fourth defendant out of the joint family properties. After insertion of Section 29-A in the Act by Andhra Pradesh Act 13 of 1986, the first defendant claimed that Defendants 6 to 9 being unmarried daughters are entitled to shares on a par with their brothers because the properties had not been divided by then. After insertion of Section 29-A in the Act by Andhra Pradesh Act 13 of 1986, the first defendant claimed that Defendants 6 to 9 being unmarried daughters are entitled to shares on a par with their brothers because the properties had not been divided by then. The trial court rejected the claim of the first defendant by observing that with the dismissal of the appeal by the High Court, the preliminary decree had become final and the appellant was not entitled to indirectly challenge the same." ( 17. ) ON a careful reading of the aforesaid judgment, we could see that the daughters were given equal share as per the provisions of Section 29-A of Hindu Succession Act, introduced through amendment Act of 2005. However, a distinction has been made in respect of the applicability of the said Section as far as the States of Andra Pradesh and Karnataka are concerned. Similarly, the State of Tamil Nadu was also one of the pioneers to introduce the equal right to women through the Act 1 of 1990. ( 18. ) AS per the provisions of the Amendment Act, the benefits would accrue to the women who were not married as on 25.3.1989. The said amendment was also carried out in Section 29 A of the Hindu Succession Act in the amendment Act of 2005. Therefore, the requisite for the applicability of the Act is still continued even after the amendment Act of 2005 which has been a Central Act. AS far as this case is concerned, the plaintiff and the 3rd defendant were admittedly married women and they were married prior to 25.03.1989. The evidence were also to that effect and therefore, they are not entitled to claim the benefit of the amendment Act of 2005, which introduced Section 29-A. Therefore, the judgments of Hon'ble Apex Court cited by the learned counsel for the appellant are not helpful to the plaintiff. In the said circumstances, the judgment and decree passed by the trial Court which was confirmed by the First Appellate Court are not liable to be interfered. In the said circumstances, the judgment and decree passed by the trial Court which was confirmed by the First Appellate Court are not liable to be interfered. The substantial questions of law formulated for the purpose of disposal of the appeal would also end in favour of the respondents 5 to 7 and the concurrent finding reached by the First Appellate Court are necessarily to be confirmed and accordingly, the present appeal preferred by the appellant is liable to be dismissed. ( 19. ) FOR the foregoing discussion, I am of the considered view that the judgment and decree passed by the First Appellate Court in concurrent with the decision reached by the trial Court in O.S.No.146 of 1998 are not liable to b interfered and thus the second appeal deserves dismissal. Accordingly, the second appeal is dismissed and the preliminary decree passed by the trial court as confirmed by the First Appellate Court are confirmed. No costs.