Angammal and Chinnammal vs C. Sellamuthu and Senthilkumar

P. Jyothimani, J.—The plaintiffs in the suit are the revision petitioners. The revision under Article 227 of the Constitution of India is directed

against the order of the learned trial Judge in dismissing the application filed by the plaintiffs in I.A. No. 1005 of 2006 under Order VI, Rule 17

CPC for amendment of the plaint.

The plaintiffs filed the suit in O.S. No. 98 of 2005 on the file of the First Additional Subordinate Judge, Erode for declaration that the decree

passed in O.S. No. 311 of 1998 on the file of Sub Court, Erode is void and not binding the share of Chennimalai Gounder in the suit properties

and for injunction restraining the defendants from in any manner either alienating or encumbering the suit properties and for preliminary decree for

partition dividing the suit properties into six equal shares and to allot one such share to each of the plaintiffs.

According to the plaintiffs, the suit properties are agricultural properties and A-schedule properties are the joint family properties of late V.

Chennimalai Gounder allotted to him under partition deed dated 14.7.1960 executed between himself and other co-sharers. B-schedule property

is a house property inherited by Chennimalai Gounder as his ancestral property. The joint Hindu family included Chennimalai Gounder apart from

the first defendant Chellamuthu. The second defendant is the son of the first defendant. Both the plaintiffs are the daughters of Chennimalai

Gounder. After the death of plaintiffs'' mother Pongiammal on 14.4.1998, Chennimalai Gounder was living with the second plaintiff and the

plaintiffs were looking after him. Chennimalai Gounder is stated to have died due to cardio-respiratory arrest on 23.6.2004 at Universal Hospital,

Erode. Therefore after his death, the plaintiffs as well as the first defendant have inherited his properties as legal heirs and each of the plaintiffs is

entitled to 1/6th share and the first defendant is entitled to 2/3rd share. It is, with that pleadings, the suit was filed.

The second defendant has filed a written statement. While admitting the relationship between the parties, the second defendant denies that A-

schedule properties are joint family properties. According to him, the properties were purchased out of the common joint family fund for valuable

consideration of Rs. 25,000/- through a registered sale deed dated 4.7.1973 in the name of first defendant. It is also denied that the plaintiffs are

having any share in the properties. The C-schedule property is stated to be a self-acquired property of the first defendant. According to him,

Chennimalai Gounder and the first defendant constituted a joint Hindu family. According to the second defendant, the first defendant has filed a suit

in O.S. No. 311 of 1998 before the Sub Court, Erode against the second defendant and his younger sister and Chennimalai Gounder for

declaration in respect of C-schedule property and for partition in respect of A and B schedule properties and a preliminary decree was passed

declaring that C-schedule property was the absolute property of the first defendant and for partition in respect of other suit properties. In the said

suit, there was a compromise and a family arrangement was entered between the second defendant, the first defendant, Krishnaveni @ Sudha viz.,

the plaintiff and the defendants in O.S. No. 311 of 1998 and as per the said compromise, Krishnaveni @ Sudha received a sum of Rs. 50,000/-

from the second defendant and allotted her share to the second defendant. Likewise, Chennimalai Gounder received Rs. 50,000/- from the first

defendant and allotted his share to the first defendant. It is the further case of the second defendant that the first defendant has agreed to receive a

sum of one lakh rupees and allot his share in favour of the second defendant and accordingly, on payment, the first defendant allotted his share to

the second defendant. The memo of compromise was filed in the said suit and accordingly, a final decree was passed on 11.8.1999 in I.A. No.

1082 of 1998. Chennimalai Gounder and the said Krishnaveni @ Sudha were not allotted any share in the suit properties. Therefore, according to

the second defendant, the plaintiffs are not entitled to any share.

Pending the suit, the plaintiffs filed I.A. No. 1005 of 2006 under Order VI, Rule 17 C.P.C. for amendment of the plaint claiming the quantum of

share as 1/3rd and consequently, to change the valuation of A to C schedule properties. The amendment was sought to be made on the basis of

the Hindu Succession Act (Amendment), 2005 which came into force in September, 2005 giving equal right to females in a joint family. Therefore,

on the advent of law, the quantum of shares would get enlarged from 1/6th to 1/3rd since both male and female are equal after the amendment

came into existence.

The said application was resisted by the respondents/defendants on the basis that the amendment of law is not retrospective in operation and the

same is not applicable and therefore, the amendment of pleadings shall not be accepted. It was, under those circumstances, the learned trial Judge,

having come to the conclusion that the amended Hindu Succession Act, 2005 is not applicable to the facts and circumstances of the case and also

relying upon the Judgment in Sheela Devi v. Lal Chand (2007) 1 MLJ 797 rejected the application for amendment, against which the plaintiffs have

filed the present revision petition.

According to the learned Counsel appearing for the revision petitioners, as per the Hindu Succession (Amendment) Act, 2005, females are

entitled to equal shares and the amendment has come into effect from 9.9.2005 while the suit was admittedly filed in March, 2005. It is further

contended that by rejecting the application for amendment, the trial Court has gone into the merits of the case as to whether the plaintiffs/petitioners

are having equal shares as per the amended Hindu Succession Act which is unwarranted and in support of which the learned Counsel relied upon

the Judgment of the Supreme Court in Sampathkumar v. Ayyak Kannu and Ors. 2002 (4) CTC 189 and also the Full Bench Judgment of this

Court in Dr. S.H. Sithik Basha Vs. Fazal Ahmed, , apart from Jothi v. Kumaravel 2007 (3) MLJ 64.

On the other hand, Mr. Ayyathurai, learned Counsel for the respondents would submit that the notional partition would take place from the date

of death of Chennimalai Gounder who died on 23.6.2004. The first plaintiff got married in the year 1965 and the second plaintiff in the year 1970

and there was an earlier suit in O.S. No. 311 of 1998 wherein a final decree was passed. That apart, the mother of the plaintiffs, Pongiammal died

on 14.4.1998. According to him, Section 6 of the Hindu Succession Act before 9.9.2005 has conferred the right by survivorship on the male

members in the Mitakshara coparcenary family when a Hindu male dies and only in cases where the deceased had left a female member, who is a

Class-I heir as specified in the Schedule, the interest of deceased in the Mitakshara coparcenary property shall devolve by testamentary or

intestate succession and not by survivorship. It was only after the Hindu Succession Act was amended by the Amendment Act 39 of 2005 which

has come into effect from 9.9.2005, the daughter of a co-parcener is given a right as that of a son by birth. According to him, even though the

Hindu Succession Act (Tamil Nadu) Amendment Act, 1989 (Act 1/90) came into effect from 25.3.1989 by which Sections 29A to 29C were

introduced whereby in a Hindu family governed by Mitakshara law, daughter of a co-parcener by birth is equally treated on par with a son, the

said provision had no effect since there was no consequential amendment to the Hindu Succession Act amending Section 6 which originally

conferred notional partition by survivorship. He would further submit that even under the Tamil Nadu Act, u/s 29A(iv), the effect of the said

provision has been taken away in respect of daughters married before the commencement of Hindu Succession [Tamil Nadu Amendment] Act

1989 which came into force from 25.3.1989 and therefore, according to him, even if Section 29A of the Tamil Nadu Amendment Act is

applicable, inasmuch as both the plaintiffs were married in 1965 and 1970 respectively, they have no right equally on par with male members.

According to him, after the Central Act came into existence with effect from 9.9.2005, the said Act is given prospective effect. He would also

submit that as per the Amendment Act 39 of 2005, it is made very clear that any partition or testamentary disposition of property which has taken

place before 20th December, 2004 shall not be affected. Therefore, according to him, since the final decree for partition has already been passed

on 11.8.1989, there is no question of applicability of the Amendment Act to the facts of the case. Therefore, according to the learned Counsel for

the respondents, the trial Judge was correct in rejecting the application for amendment.

I have heard the learned Counsel for the petitioners as well as learned Counsel for the respondents, and perused the entire records.

It is seen from the plaint pleadings that the plaintiffs are the daughters of Chennimalai Gounder who died on 23.6.2004 and they have filed the

suit for partition claiming 1/6th share each making it clear that the first defendant is entitled to 2/3rd share. The only ground on which the

amendment was sought to be made by the plaintiffs is the advent of the Hindu Succession (Amendment) Act, 2005 which has come into effect

from 9.9.2005. Before the said amendment came into effect, Section 6 of the Hindu Succession Act stood as follows:

Devolution of interest in coparcenary property: When a male Hindu dies after the commencement of this Act, having at the time of his death an

interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the

coparcenary and not in accordance with this Act:

Provided that, if the deceased had left him surviving a female relative specified in Class I of the Schedule or a male relative specified in that Class

who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or

intestate succession, as the case may be, under this Act and not by survivorship.

Therefore, on the death of a male member of a Hindu family belonging to a Mitakshara co-parcenery, the property devolves by survivorship to

the surviving members of the coparcenery. The only exception given to female members is that if they are in class-I heirs, the interest of the said

descendants in the Mitakshara coparcenery property will devolve upon the said female members by testamentary or intestate succession and not

by survivorship.

The said Central Act was amended by the Hindu Succession (Amendment) Act, 2005 (Act 39/2005) which came into effect from 9.9.2005.

After amendment, Section 6 of the Hindu Succession Act stands as follows:

Devolution of interest in coparcenary property.- (1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a

Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,-

(a) by birth become a coparcener in her own right in the same manner as the son;

(b) have the same rights in the coparcenary property as she would have had if she had been a son;

(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son,

and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:

Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary

disposition of property which had taken place before the 20th day of December, 2004.

(2) Any property to which a female Hindu becomes entitled by virtue of Sub-section (1) 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 testamentary disposition.

(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu

family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by

survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and.-

(a) the daughter is allotted the same share as is allotted to a son;

(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be

allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and

(c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she 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 a pre-deceased daughter, as

the case may be.

Explanation.- For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property

that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was

entitled to claim partition or not.

(4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no Court shall recognise any right to proceed against a son,

grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious

obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt:

Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005, nothing contained in

this sub-section shall affect-

(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or

(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall b e enforceable under the rule of

pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005

had not been enacted.

Explanation.- for the purposes of Clause 9a), the expression ""son"" ""grandson"" or ""great-grandson"" shall be deemed to refer to the son, grandson or

great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005.

(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004.

Explanation.- For the purposes of this section ""partition"" means any partition made by execution of a deed of partition duly registered under the

Registration Act, 1908 (16 of 1908) or partition effected by the decree of a Court.

Therefore, after the amendment to the Central Act, female members are entitled to on par with male members in the Hindu Mitakshara

coparcenery property.

The said Act is prospective which has come into effect from 9.9.2005. Proviso to Section 6(1) makes it clear that the said section shall not

invalidate any disposition or alienation including any partition or testamentary disposition of property which has taken place before 20th December,

2004. Further, Sub-section (5) of Section 6 also states that nothing contained in the said section shall apply to partition which has been effected

before 20th December, 2004. Applying the said provision it is very clear that the partition or any disposition effected before 20th December, 2004

is not affected by the amendment. Further, a reading of Section 6 shows that it is prospective in its application.

On the facts of this case, Chennimalai Gounder died on 23.6.2004, the date on which notional partition has taken place which is before

20.12.2004, which is contemplated under the proviso to Section 6(1) of the Hindu Succession Act after amendment. On the pleadings, it is clear

that the final decree has been passed as early as on 11.8.1989. Admittedly, the plaintiffs have got married in the years 1965 and 1970

respectively. In these circumstances, as per law which is relied upon by the plaintiffs, the plaintiffs are not entitled to larger share since the

Amendment Act is prospective in nature and there is no question of enlargement of devolution of share to the plaintiffs. When that is so, the

amendment has to be necessarily rejected. In such circumstances, the reliance placed by the learned Counsel for the petitioners on the Judgment of

this Court in Jothi v. Kumaravel 2007 (3) MLJ 64 that amendment under Order VI, Rule 17 can be effected at any time even after commencement

of trial, has no application.

As correctly pointed out by the learned Counsel for the respondents, the Supreme Court has held in Sheela Devi v. Lal Chand (2007) 1 MLJ

797 (SC) if succession has opened prior to Hindu Succession (Amendment) Act, 2005, the provisions of Amendment Act would have no

application. It is based on the ratio decidendi given by the Supreme Court in the said judgement, the learned trial Judge has rejected the application

for amendment on the ground that Chennimalai Gounder died on 23.6.2004. But a careful reading of the said Judgment shows that in that case the

High Court was required to determine as to whether the provisions of Section 8 of the Act would apply to the facts of the said case or the law

prior to the enforcement of 1956 Act would apply. The High Court having held that the nature of the prayer must be regarded as a Hindu

coparcenery and as such the law applicable before the Act came into effect would govern the rights of the parties and not the provisions of the

Act. It was in those circumstances, the Supreme Court held that if the succession is opened before the Amendment Act came into existence, the

Amendment Act, 2005 would have no application. The Supreme Court further held as follows:

The Act indisputably would prevail over the old Hindu Law. We may notice that the Parliament, with a view to confer right upon the female

heirs, even in relation to the joint family property, enacted Hindu Succession Act, 2005. Such a provision was enacted as far back in 1987 by the

State of Andhra Pradesh. The succession having opened in 1989, evidently, the provisions of Amendment Act, 2005 would have no application.

Sub-section (1) of Section 6 of the Act governs the law relating to the succession on the death of a coparcener in the event the heirs are only male

descendants. But, proviso appended to Sub-section (1) of Section 6 of the Act creates an exception. First son of Babulal, viz., Lalchand, was,

thus, a coparcener. Section 6 is exception to the general rules. It was, therefore, obligatory on the part of the plaintiffs/respondents to show that

apart from Lalchand, Sohan Lal will also derive the benefit thereof. So far as the second son Sohan Lal is concerned, no evidence has been

brought on record to show that he was born prior to coming into force of Hindu Succession Act, 1956.

In any event, inasmuch as under the amended provision, especially the provisos to Section 6(1) and 6(5) of the Act, any partition effected

before 20th December, 2004 has been saved and on the facts of the case as it is narrated in the written statement that in the partition suit there has

been a final decree passed on 11.8.1999 itself and on the basis of memo of compromise filed in which Chennimalai Gounder, who was a

coparcener, ultimately died on 23.6.2004. Even as per the explanation, notional partition has taken effect from the date of his death, viz.,

23.6.2004 before which time the partition has already been effected by way of final decree and therefore, as rightly pointed out by the learned trial

Judge, there is no substance in the contention of the petitioners that by advent of law, viz., by way of amendment, the division of shares gets

enlarged. In view of the same, there is no illegality or irregularity in the order of the learned trial Judge and the revision fails and the same is

dismissed. No costs. Connected miscellaneous petition is closed.