Maniammai vs antharoobi Ammal and others

V. Periya Karuppiah, J.—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. The appellant herein is the plaintiff and the respondents are the defendants before the trial court.

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.

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 01.10.1997 calling 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.

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.

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. 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.

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. The First Appellate Court had heard the appeal and had confirmed the judgment and decree passed by the trial

court.

The plaintiff having aggrieved over the judgment and decree passed/by the First Appellate Court, has preferred the present second appeal.

On admission, this Court had formulated the following substantial questions of law for determination in the appeal:-

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 ?

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 ?

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 ?

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.

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 fattier, 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. 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 Sheela Devi and Others Vs.

Lal Chand and Another, 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 Prema Vs. 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=2011-5-L.W. 612 (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.

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 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.

I have given anxious thoughts to the arguments advanced on either side.

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. 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.

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.

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 u/s 29 A of Hindu

Succession Act. For that, he had placed the judgment of Hon''ble Apex Court reported in 2011(9) SCC 788= 2011-5-L.W. 612 (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.

Yet another judgment of Hon''ble Apex Court reported in Prema Vs. Nanje Gowda and Others, was also drawn for the support of the

appellant. The relevant passage would also run thus:-

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. 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.

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.

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. 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. 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.