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2013 DIGILAW 3439 (MAD)

B. Malathy v. Saravanan

2013-09-23

R.S.RAMANATHAN

body2013
JUDGMENT 1. With the consent of both the parties, the Appeal itself, is taken up for final disposal. 2. The Second Plaintiff in O.S. No.114 of 2010, on the file of the Principal District Court, Namakkal, is the Appellant herein. She along with her father/First Plaintiff, filed the Suit for Partition of their 2/3rd share in the Suit property. 3. The Trial Court, in and by its Judgment, dated 29.4.2011, negatived the claim of the Appellant/Second Plaintiff, and passed a Preliminary Decree, holding that the father/First Plaintiff and his son/First Defendant were each entitled to half share in the Suit property. Aggrieved by the said Judgment, the present Appeal was filed. 4. The case of the Plaintiffs, as stated in the Plant, is as follows:- (i) The First Plaintiff and Second Defendant are the husband and wife, and the Second Plaintiff and First Defendant are their children. The First Plaintiff got the Suit property in a Partition Deed, dated 8.9.1976, and, he is in enjoyment of the same along with his son/First Defendant and daughter/Second Plaintiff. Therefore, as per the Hindu Succession Act, as amended by Act, 2005, the daughter is also entitled to a share on par with son, as the property is the ancestral property in the hands of the father/First Plaintiff. Hence, the Suit was filed for Partition and allotment of 1/3rd share to each Plaintiff and 1/3rd share to the First Defendant. 5. The First Defendant contested the Suit, by filing a Writing Statement, stating that there was no division among the Plaintiffs and the First Defendant. He also denied the Settlement Deeds, alleged to have been executed by the First Plaintiff in favour of the Second Plaintiff to his knowledge and consent. The First Defendant admitted that the suit property was allotted to the share of the First Plaintiff in the family Partition Deed, dated 8.9.1976, and the Suit property is income yielding property. The First Plaintiff spent money lavishly, and was indulging in all sorts of immoral activities. The Second Plaintiff was given education and she was provided with 100 sovereigns Gold, one Maruti Car, and dowry of Rs.1,00,000/-and her marriage was also performed in a grand manner, by spending a sum of Rs.20,00,000/-. The First Plaintiff spent money lavishly, and was indulging in all sorts of immoral activities. The Second Plaintiff was given education and she was provided with 100 sovereigns Gold, one Maruti Car, and dowry of Rs.1,00,000/-and her marriage was also performed in a grand manner, by spending a sum of Rs.20,00,000/-. The son of the Second Plaintiff was also provided with good education at the expense of the Joint Family income, and, for his higher education, the First Plaintiff has spent huge amount, and therefore, the Second Plaintiff cannot claim any right over the Suit property. 6. On the basis of the above pleadings, the Trial Court framed the following Issues:- (i) Whether the Plaintiffs are entitled to 2/3rd share in the Suit property? (ii) Whether the First Plaintiff gave 100 sovereigns gold, Maruti Car and cash of Rs.1,00,000/- for the marriage of the Second Plaintiff? And (iii) Whether the First Plaintiff spent the joint family income for the education of his grandson? Additional Issues:- (i) Whether the Suit is bad for partial Partition, since the properties, viz., cars, bearing Reg.Nos.N-28-01-C-2800 and TN-AY-9969, and Motorcycles, bearing Nos.TAS-8097 & TN28-A-1464, were not included in the Suit schedule for partition? and (iii) Whether 100 sovereign jewels, which belonged to the Second Defendant were concealed from partition? 7. The Trial Court tried Issues (i) to (iii) together and held that the Second Plaintiff/daughter is not entitled to the relief of partition, as she was given 100 sovereigns gold, a Maruti Car and Cash of Rs.1,00,000/-and her marriage was also conducted in a grand manner, by spending Rs.20,00.000/-and, the First Plaintiff also executed Settlement Deeds, Exs.A4 & A9, in favour of the Second Plaintiff to defeat the rights of the First Defendant. Therefore, the Second Plaintiff is not entitled to any share in the Suit property. 8. The Additional Issued framed, were also tried together, and, it was held by the Trial Court that the Suit is not bad for partial Partition, and the vehicles an be included in the schedule of property, and, can be divided between the father and son, and passed a Preliminary Decree, holding that the First Plaintiff and the First Defendant are each entitled to half share in the Suit property. Aggrieved by the same, the present Appeal is filed by the daughter/Second Plaintiff/Appellant. 9. Mr. Aggrieved by the same, the present Appeal is filed by the daughter/Second Plaintiff/Appellant. 9. Mr. P. Valliappan, the learned Counsel appearing for the Appellant submitted that the Trial Court erred in holding that the Appellant is not entitled to any share in the Suit property for the reason that she was provided with 100 sovereigns Gold, Car and dowry of Rs.1,00,000/- and her marriage was also performed in a grand manner, by spending a sum of Rs.20,00,000/- out of Joint Family income. According to the learned Counsel, the findings of the Trial Court are contrary to the evidence adduced in that case. The learned Counsel submitted that the Third Respondent/First Plaintiff got the Suit properties in a Partition Deed, dated 8.9.1976, and therefore, in the hands of the Appellant/Second Plaintiff and the First Respondent/First defendant, the Suit properties are the ancestral properties and as per the Hindu Succession (Amendment) Act, 2005, the daughter is also entitled to claim equal share, on par with the son in those properties. On that basis, the Suit was filed. 10. The learned Counsel for the Appellant further submitted that the father/Third Respondent admitted that 25 sovereigns of gold was given at the time of marriage and that was presented to his wife, and therefore, the family did not spend any money towards the jewels. The learned Counsel also submitted that the Third Respondent, being the father of the Appellant, is duty bound to celebrate the marriage of his daughter and the expenditures incurred by him towards the marriage of his daughter, cannot be deducted towards her share in the Suit property. Moreover, no proof was adduced by the Third Respondent that Rs.20,00,000/- was spent for the marriage of the Appellant, and, according to the evidence of the Third Respondent, only Rs.2,00,000/- was spent. Therefore, the Trial Court ought to have held that the daughter (Appellant in this case) is also entitled to share equally with the son/First Respondent and ought to have granted the decree of 2/3rd share, together, for father and daughter. 11. Therefore, the Trial Court ought to have held that the daughter (Appellant in this case) is also entitled to share equally with the son/First Respondent and ought to have granted the decree of 2/3rd share, together, for father and daughter. 11. The learned Counsel appearing for the First Respondent submitted that the Trial Court, after taking into consideration the expenses incurred by the Joint Family in celebrating the marriage of the Appellant, has rightly held that the daughter/Appellant was provided with sufficient money, and other valuable Sreedhana articles, and therefore, she is not entitled to claim any share in the Suit property. Hence, the learned Counsel submitted that there is no need to interfere with the findings of the Trial Court. 12. In view of the above submissions made by the learned Counsel for the respective parties, the only point that arises for consideration in this Appeal is hereunder:- “Whether the daughter is not entitled to claim equal share in the Joint Family property, on par with son, when she was provided with jewels and substantial amount at the time of her marriage?” 13. It is admitted that the Third Respondent/First Plaintiff is the father of the Appellant/Second Plaintiff and the First Respondent/First Defendant. It is also an admitted fact that the Third Respondent got the Suit properties in a Partition Deed, dated 8.9.1976, and therefore, the Suit properties are the joint family properties in the hands of the father and his children, viz., the Appellant and First Respondent. 14. As per the Hindu Succession (Amendment) Act, 2005 the daughter is entitled to claim equal share along with son, even, in respect of the ancestral properties. Further, there was no Partition between the father/Third Respondent and son/First Respondent, and therefore, the daughter/Appellant is entitled to claim equally along with son. Hence, she is entitled to claim 1/3rd share in the Suit property. No doubt, the father/Third Respondent has deposed that his daughter was presented with 25 sovereigns of gold and her marriage was celebrated in a grand manner at the cost of Rs.20,00,000/-. According to me, on that grounds, the daughter/Appellant cannot be denied her share, as it is the duty of the father to celebrate his daughter’s marriage, and the expenses incurred for celebrating the marriage of the daughter, cannot be taken into consideration towards the share of the daughter in the Suit property. According to me, on that grounds, the daughter/Appellant cannot be denied her share, as it is the duty of the father to celebrate his daughter’s marriage, and the expenses incurred for celebrating the marriage of the daughter, cannot be taken into consideration towards the share of the daughter in the Suit property. These aspects were not properly appreciated by the Trial Court, and the Trial Court committed serious error in denying the relief of partition, holding that the daughter/Appellant was given sufficient jewels, and substantial amount, and her marriage was also celebrated in a grand manner. Hence, the findings of the Trial Court are set aside and the point for consideration in this Appeal is answered in favour of the Appellant. I hold that the daughter/Appellant is entitled to 1/3rd share and the Respondents 1 and 3 are entitled to each 1/3rd share in the Suit properties and Preliminary Decree is passed to that effect. 15. In the result, the Appeal is allowed and the Judgment and Decree of the Trial Court is modified, as stated above. Consequently, connected M.P. is closed. The parties shall bear their own cost through out.