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2022 DIGILAW 3145 (MAD)

Amaravathi v. Ponmozhi

2022-09-05

N.MALA

body2022
JUDGMENT (Prayer: Appeal Suit filed under Order 41 Rule 1 r/w 96 of the Code of Civil Procedure, 1908, against the Judgment and Decree dated 24.08.2015 made in O.S.No.264 of 2013 on the file of the II Additional District Court, Salem.) 1. This Appeal Suit is filed against the Judgment and Decree dated 24.08.2015 made in O.S.No.264 of 2013 on the file of the II Additional District Court, Salem, decreeing the plaintiff's suit for partition of her 1/3rd share in the suit property. 2. The contesting appellant was impleaded in the appeal suit vide order dated 30.11.2021in C.M.P.No.16421 of 2017 in A.S.No.1002 of 2015 and will be referred to as the appellant in this appeal. The plaintiff in the suit will be referred as the 1st respondent in this appeal. INTRODUCTION/PLEADINGS IN BRIEF: 3. The suit was filed by the 1st respondent on the premise that the suit properties are the ancestral properties and as such she was entitled to 1/3rd share in the suit properties along with the 2nd and 3rd respondents who are her father and brothers respectively. According to the 1st respondent she was married in the year 1996 and as such she was entitled to the benefit of Section 29-A of the Hindu Succession (Tamil Nadu Amendment) Act, 1989 (1 of 1990). The 1st respondent was given to understand that the respondent Nos.2 and 3 alienated the properties in favour of the 1st appellant and such alienation was invalid in so far as her 1/3rd share in the suit properties is concerned. The 1st respondent's further case was that in spite of repeated reminders and demands for partition of her 1/3rd share in the suit properties, the respondents 1 and 2 refused and so she was constrained to file the suit. The respondents 1 and 2 remained ex-parte and the 1st appellant alone filed the written statement denying the 1st respondent's claim for partition of her 1/3rd share in the suit properties. 4. According to the 1st appellant the suit properties absolutely belonged to the 1st appellant and all the revenue records also stood in his name. The 2nd respondent as the absolute owner executed a registered Settlement Deed on 29.08.1994 vide Document No.2449/1994 before the Sub Registrar, Omalur in favour of the 3rd respondent and also put the 3rd respondent in possession of the suit properties in pursuance of the Settlement Deed. The 2nd respondent as the absolute owner executed a registered Settlement Deed on 29.08.1994 vide Document No.2449/1994 before the Sub Registrar, Omalur in favour of the 3rd respondent and also put the 3rd respondent in possession of the suit properties in pursuance of the Settlement Deed. The 3rd respondent thereafter vide registered Sale Deed dated 02.07.2008 in Document No.5479/2008 before the Sub Registrar, Omalur alienated the suit properties to the 1st appellant herein and ever since the 1st appellant was in enjoyment of the suit properties as absolute owner. 5. It was the further case of the 1st appellant that in the suit in O.S.No.65 of 2009 filed by the sister of the 2nd respondent for declaration of the Settlement Deed and the Sale Deed as null and void, the Trial Court after full trial had dismissed the suit on 26.11.2010. Therefore according to the 1st appellant the Settlement Deed as well as the Sale Deed were tested before the Court and found to be valid and as such the present suit is not maintainable. 6. On the basis of the pleadings, the trial Court framed the following issues: 1. Whether the plaintiff is entitled to get any share in the suit properties? 2. Whether the defendants are restrained by permanent injunction from alienating or encumbering the suit properties? 3. Whether the plaintiff is entitled to mense profit? 4. To what relief, the plaintiff is entitled? The said issues were recasted as follows:- 1. Whether the plaintiff is entitled to get any share in the suit properties? 2. Whether the settlement deed dated 29.08.1994 and the sale deed dated 02.07.2008 are to be declared as null and void? 3. Whether the defendants are restrained by permanent injunction from alienating or encumbering the suit properties? 4. To what relief, the plaintiff is entitled? 7. On the side of the plaintiff, plaintiff examined herself as PW1 and marked Ex.A1 to Ex.A3. On the side of the defendants, 3rd defendant examined himself as DW1 and marked Ex.B1 to Ex.B7. The trial Court on an appreciation of the pleadings and evidence on record decreed the suit and passed a preliminary decree for partition of the plaintiff’s 1/3rd share and granted permanent injunction in favour of the plaintiff restraining the defendants from alienating or encumbering the plaintiff’s 1/3rd share in the suit property. 8. The trial Court on an appreciation of the pleadings and evidence on record decreed the suit and passed a preliminary decree for partition of the plaintiff’s 1/3rd share and granted permanent injunction in favour of the plaintiff restraining the defendants from alienating or encumbering the plaintiff’s 1/3rd share in the suit property. 8. Aggrieved by the Judgment and the Decree of the trial Court the unsuccessful 3rd defendant preferred the above appeal. During the pendency of the above suit the 2nd appellant filed an application to implead herself as a party in the above appeal, as she had purchased the property on 08.10.2013 from the 1st appellant without knowledge of the pendency of the suit. The implead application was ordered on 30.11.2021. The 2nd appellant is therefore contesting the appeal. 9. The 3rd defendant/appellant raised the following grounds in the grounds of appeal. 1. The Judgment and Decree of the trial Court is against law, weight of evidence and probabilities of the case. 2. The Trial Court ought to have dismissed the suit on the sole ground that, the plaintiff had not proved the suit properties were joint family properties. 3. The Court below ought to have seen, that, merely because Ex.A3 “A” Register stands jointly in the names of Ramasamy Gounder and Nallappa Gounder, that, does not mean the properties, the revenue records will stand only in the name of eldest family member and not in the name of several persons. 4. The Court below failed to see, that, revenue records cannot be proof of the character of the properties. In fact, it could also indicate, that, Ramasamy Gounder and Nallappa Gounder were joint owners. 5. The Trial Court failed to see, that, when defendants 1 and 2 are ex-parte, then, the onus is more on the plaintiff to prove the joint family nature of the properties. 6. The Court below failed to see, that, even otherwise, the plaintiff has not let in evidence to prove, that, she was married in 1996, and, therefore, entitled to the benefits of Tamil Nadu Act 1/1990. 7. The Court below failed to see, that, already the character of the suit properties has been determined in the earlier proceedings in O.S.No.65 of 2009 – in the suit instituted by the plaintiff's paternal aunt filed against the plaintiff's father. 8. 7. The Court below failed to see, that, already the character of the suit properties has been determined in the earlier proceedings in O.S.No.65 of 2009 – in the suit instituted by the plaintiff's paternal aunt filed against the plaintiff's father. 8. The other reasons given by the Court below for decreeing the suit are untenable in law. SUBMISSIONS OF COUNSEL: 10. The learned counsel for the appellants submitted that on the basis of Ex.A3 i.e. "A" Register, which is a revenue record, the trial court could not conclude that the suit property was Ancestral property. The counsel further submitted that as the respondent Nos.2 and 3 remained ex-parte the burden was heavy on the 1st respondent to establish the coparcenary nature of the property. The 1st respondent having failed to produce any documents, apart from Ex.A3 – “A” Register, the trial Court ought not to have found favour with the 1st respondent. 11. According to the learned counsel for the appellants the suit properties were the absolute properties of the 2nd respondent and even the Revenue Records stood in the name of the 2nd respondent. The 2nd respondent as the absolute owner of the suit properties executed the settlement deed dated 29.08.1994 registered as Document No.2449/1999, settling the suit properties in favour of the 3rd respondent and further put the 3rd respondent in possession of the same. The 1st appellant purchased the property from the 3rd respondent on 02.07.2008 under Document No.5479/2008 and ever since the said purchase the 1st appellant was in peaceful enjoyment and possession of the suit properties. The 2nd appellant thereafter purchased the suit properties from the 1st appellant on 08.10.2013. 12. The learned counsel for the appellants further submitted that the sister of the 2nd respondent filed the suit for declaration that the Gift / Settlement Deed in favour of the 3rd respondent and the Sale Deed in favour of the 1st appellant was null and void, for partition and for other reliefs. The said suit was dismissed after full trial on 26.11.2010 and therefore the learned counsel submitted that the settlement deed was already tested and found to be in valid in earlier judicial proceedings and therefore the present suit was not maintainable and liable to be dismissed. 13. The said suit was dismissed after full trial on 26.11.2010 and therefore the learned counsel submitted that the settlement deed was already tested and found to be in valid in earlier judicial proceedings and therefore the present suit was not maintainable and liable to be dismissed. 13. The learned counsel for the appellant lastly submitted that in any event, the sale deed Ex.B2 would be invalid only to the extent of the 1st respondent's 1/3rd share. In other words it was the contention of the learned counsel that the 1st respondent is entitled to 1/3rd share only in the property and therefore the appellants 2/3rd share needs to be confirmed. 14. In contra, the learned counsel for the 1st respondent contended that Ex.A3, "A" Register could be very well relied on to prove the ancestral character of the property. The learned counsel further relied on the recitals in Ex.B1, Settlement Deed dated 29.08.1994, based on which the appellant had purchased the property to contend that the suit properties were ancestral properties. The learned counsel referred to the evidence of DW1, in support of his case that the 1st appellant was not a bona fide purchaser and that he was very well aware of the 1st respondents share in the suit property and lastly the learned counsel submitted that the settlement deed and the sale deed were void documents in so far as the first respondent's 1/3rd share was concerned as she had not consented to the Settlement Deed. 15. I have considered the pleadings, documents on record and the arguments of the learned counsel. I have gone through the Judgments filed by both the counsels and I have confined myself to the latest Judgment of the Apex Court in the case of Vineetha Sharma Vs. Rakesh Sharma and other reported in 2020 9 SCC 1 as in my view the same squarely covers the issues raised in this appeal. 16. I have gone through the Judgments filed by both the counsels and I have confined myself to the latest Judgment of the Apex Court in the case of Vineetha Sharma Vs. Rakesh Sharma and other reported in 2020 9 SCC 1 as in my view the same squarely covers the issues raised in this appeal. 16. The following points arise for consideration in the above appeal: 1) Whether the suit properties are the ancestral properties of the 1st respondent and the respondents 2 and 3; 2) Whether the settlement deed dated 29.08.1994 and the sale deed dated 02.07.2008 are binding on the 1st respondent in as much as they are executed in denial of her 1/3rd share in the suit property; and 3) Whether the first respondent is entitled to the relief of Partition of her 1/3rd share in the suit properties. POINTS FOR DETERMINATION: ISSUE NO.I 17. The 1st respondent relied on Ex.A3 and the recitals in Ex.B2 to drive home the point that the suit properties were the ancestral properties in which she had 1/3rd share along with the respondents 2 and 3. In Ex.A3 “A” Register of Manukottai Village, the names of her ancestors Ramasamy Gounder and Nallappa Gounder are given and hence this document fortifies her contention on the nature of the property. 18. The learned counsel for the appellants objected to the same and submitted that on the basis of Ex.A3 which is only a revenue record the 1st respondent cannot claim 1/3rd share in the suit property. It is no doubt true that the revenue records are not documents of title, but in this case, apart from Ex.A3, the recitals in the Settlement Deed, Ex.B2 clearly establishes that the suit property is the ancestral properties of the respondents 1 to 3. The relevant recitals in Ex.B2 are extracted for better appreciation. “TAMIL” 19. As per the above recitals the settlor i.e. the father of the 1st respondent recites in the document that the property was obtained by him through his ancestors “TAMIL”. In the light of the recitals in the 2nd and 3rd respondents own document it is to be held that the suit properties are the ancestral property of the 2nd respondent. I therefore find on the basis of Ex.A3 (Adangal Extract) and Ex.B2 (Settlement Deed) that the suit properties are Ancestral in nature. ISSUE NO.2: 20. In the light of the recitals in the 2nd and 3rd respondents own document it is to be held that the suit properties are the ancestral property of the 2nd respondent. I therefore find on the basis of Ex.A3 (Adangal Extract) and Ex.B2 (Settlement Deed) that the suit properties are Ancestral in nature. ISSUE NO.2: 20. According to the appellant the 2nd respondent executed a Settlement Deed in favour of the 3rd respondent on 29.08.1994 and thereafter the 2nd respondent executed the Sale Deed on 02.07.2008 in favour of the 1st appellant. The appellant therefore contended that on the date of the suit no ancestral property was available ergo the 1st respondent's suit for partition was liable to be rejected. The learned counsel further relied on the Judgment dated 26.11.2010 in O.S.No.65 of 2009 to contend that both the Settlement Deed as well as the Sale Deed were tested in the said suit and they were held to be valid and hence the present suit was not at all maintainable. 21. In contra, the counsel for the 1st respondent submitted that as per Section 29-A of the Hindu Succession (Tamil Nadu Amendment), Act 1989 (1 of 1990), which amended Section 6 of the Hindu Succession Act, 1956 an unmarried daughter was entitled to an equal share with the son in Ancestral properties. According to the 1st respondent's counsel as the 1st respondent was unmarried on the date of the Tamil Nadu Amendment, she became a coparcener along with her brother and father. But as the 2nd respondent's father executed the Settlement Deed without her consent in favour of the 3rd respondent the Settlement Deed would not effect her 1/3rd share in the suit properties and so also the subsequent Sale Deed dated 02.07.2008. 22. The core question is whether the Settlement Deed and the Sale Deed are binding on the 1st respondent. The 1st respondent’s specific case is that she was not married on the date of the Tamil Nadu Amendment Act 1 of 1990 dated 25.03.1989. According to the 1st respondent she was married in the year 1996 and the same is not disputed by the 1st appellant in the written statement. The 1st respondent’s specific case is that she was not married on the date of the Tamil Nadu Amendment Act 1 of 1990 dated 25.03.1989. According to the 1st respondent she was married in the year 1996 and the same is not disputed by the 1st appellant in the written statement. Once it is found that the 1st respondent was entitled to the benefit of Tamil Nadu Amendment Act, then the subsequent disposition of properties by the 2nd respondent in favour of the 3rd respondent including the 1st respondent's 1/3rd share would be invalid in the absence of the 1st respondent's consent. 23. With respect to the consent of the 1st respondent, the appellant's counsel submitted that the 1st respondent gave her consent vide letter Ex.B3 dated 26.08.2008. The 1st respondent's counsel objected to the said letter stating that it was unstamped and unregistered and as such in admissible in evidence. I find force in the 1st respondent's counsel's contention. It is fairly settled that any document which creates or extinguishes a right to property worth more than Rs.100/- needs to be compulsory registered under Section 17 of the Registration Act and the same has to be sufficiently stamped for such registration. Even the trial Court has refused to rely on the consent letter (Ex.B3) on the said ground and rightly so. The learned counsel for the appellant has also fairly conceded that the document Ex.B3 is inadmissible in evidence. Therefore in the absence of consent of the 1st respondent, the 2nd respondent had no right to settle the entire property including the 1st respondent's share in faovur of the 2nd respondent. As far as the binding nature of the Judgment in O.S.No.65 of 2009 is concerned, it is seen that the 1st respondent is not a party to the said proceedings and therefor the same will not affect the maintainability of the present suit. I have perused the case records and I find that the findings in the said suit were based on the facts arising thereto and hence cannot affect the 1st respondent's right to the suit property moreso, when she was not a party to the same, The said suit was found to be barred by limitation as the same was filed 58 years after the death of the plaintiff's father therein. 24. 24. I therefore find that the Settlement Deed Ex.1 dated 29.08.1994 and the Sale Deed dated 02.07.2008 are not valid in so far as the 1st respondent's 1/3rd share is concerned and therefore the 1st respondent is entitled to 1/3rd share in the suit properties. 25. I would refer here to the Judgment of the Hon'ble Supreme Court reported in 2020 (9) SCC 1 in the case of Vineeta Sharma Vs. Rakesh Sharma. The Hon'ble Supreme Court has categorically held that the 2005 Amendment to Section 6 of the Hindu Succession Act, 1956 is retroactive in operation and not retrospective. The relevant para is quoted hereunder:- “The amended provisions of section 6(1) provide that on and from the commencement of the Amendment Act, the daughter is conferred the right. Section 6(1)(a) makes daughter by birth a coparcener "in her own right" and "in the same manner as the son. "Section 6(1)(a) contains the concept of the unobstructed heritage of Mitakshara coparcenary, which is by virtue of birth. Section 6(1)(b) confers the same rights in the coparcenary property "as she would have had if she had been a son". The conferral of right is by birth, and the rights are given in the same manner with incidents of coparcenary as that of a son and she is treated as a coparcener in the same manner with the same rights as if she had been a son at the time of birth. Though the rights can be claimed, w.e.f. 9.9.2005, the provisions are of retroactive application; they confer benefits based on the antecedent event, and the Mitakshara coparcenary law shall be deemed to include a reference to a daughter as a coparcener. At the same time, the legislature has provided savings by adding a proviso that any disposition or alienation, if there be any testamentary disposition of the property or partition which has taken place before 20.12.2004, the date on which the Bill was presented in the Rajya Sabha, shall not be invalidated.” 26. It is therefore clear that under the proviso there is saving of dispositions, alienations, testamentary dispositions and partitions which took place before 20.12.2004. The alienations or dispositions should be legally permissible and valid in law. Invalid alienations which are in violation of the daughter's legally recognised rights cannot be protected under the Proviso to Section 6(1). It is therefore clear that under the proviso there is saving of dispositions, alienations, testamentary dispositions and partitions which took place before 20.12.2004. The alienations or dispositions should be legally permissible and valid in law. Invalid alienations which are in violation of the daughter's legally recognised rights cannot be protected under the Proviso to Section 6(1). In the present case it has been held supra that the Settlement Deed is invalid in so far as the first respondent's 1/3rd share is concerned as her consent was not taken. It would be relevant to mention here the object of the 2005 Amendment Act. The object of the Amendment Act is to do gender justice. The discrimination meted to daughters by excluding them from claiming a share in the ancestral properties is done away with by the Amendment Act of 2005. Now the daughters are treated on par with sons as far as ownership of Ancestral properties is concerned. The Hon'ble supreme Court in Vineeta Sharma's case has observed and acknowledged that the states like Andhra Pradesh, Tamil Nadu, Maharashtra and Karnataka had brought Amendments to Section 6 of the Hindu Succession Act, 1956 earlier. 27. In para No.57 of the Judgment in Vineetha Sharma Vs. Rakesh Sharma the Hon'ble Supreme Court has stated as follows: “It is apparent from the provisions of Section 6 that the discrimination with the daughter has been done away with, and they have been provided equal treatment in the matter of inheritance with Mitakshara coparcenary. In several States viz., Andhra Pradesh, Tamil Nadu, Karnataka, and Maharashtra, the State Amendments in the Act of 1956 were made to extend equal rights to daughters in Hindu Mitakshara coparcenary property. An amendment was made on 30.7.1994 by the insertion of Section 6A by Karnataka Act 23 of 1994 in the Act of 1956. In State of Andhra Pradesh, the amendment was made, w.e.f. 5.9.1985, Tamil Nadu w.e.f 25.3.1989 and Maharashtra w.e.f. 26.9.1994 by the addition of Section 29A in the Act of 1956. In Kerala, the Act was enacted in 1975.” 28. In State of Andhra Pradesh, the amendment was made, w.e.f. 5.9.1985, Tamil Nadu w.e.f 25.3.1989 and Maharashtra w.e.f. 26.9.1994 by the addition of Section 29A in the Act of 1956. In Kerala, the Act was enacted in 1975.” 28. Therefore when the object of the state Amendment and the Central Amendment is one and same (i.e.) to recognise the fundamental right to equality of a daughter, the daughters right to Ancestral property which got vested by the state Amendment cannot be divested by invalid documents, even if such documents were executed before 20.12.2004, for the reason that the proviso only saves legally valid documents and not illegal / invalid documents. 29. For all the above reasons I find no merit in the appeal and the same is dismissed without costs.