Nangammal and Others vs N. Desiyappan

P. Jyothimani, J.—The unsuccessful plaintiffs in both the Courts below are the appellants in the second appeal. The plaintiffs filed the suit for

partition, claiming 7/10th share to the property. The plaintiffs case is that one Nanjunda Gounder was the owner of the property who died intestate

on 7-11-1953, his wife the second defendant also subsequently died. The first defendant is his only son and the plaintiffs are daughters. Among the

plaintiffs, the third and fourth plaintiffs are unmarried while the second defendant mother died on 8-8-1983. The trial Court while holding that the

property is an ancestral property, has granted 4/10th share to the plaintiffs. The first Appellate Court has confirmed the said decree and judgment.

Against the concurrent findings by both the Courts, the plaintiffs have filed the present appeal. While admitting the second appeal, this Court has

raised the following substantial question of law:

Whether the plaintiffs are entitled to 7/10th share as claimed by them by virtue of the Tamil Nadu Amendment to the Hindu Succession Act,

brought into force in 1989.

The learned Counsel for the appellants would submit that while it is held that the suit property is ancestral property, by virtue of the amendment

brought by Tamil Nadu Act 1/90 to Hindu Succession Act with effect from 25-3-1989, by which the Section 29(A) was inserted to the Hindu

Succession Act, an unmarried daughter of the Hindu Coparcener is recorded as coparcener by birth. In the present case, since the plaintiffs 3 and

4 are unmarried, they are entitled for 1/4 share each. Apart from the first defendant being the son entitled for another 1/4th share and the second

defendant deceased mother entitled for 1/4 share subsequent to the death of the mother, namely, the second defendant, by sharing her 1/4th share

equally by the plaintiffs and the first defendant, the first defendant''s share will be 3/10th while the first and second plaintiff share will be 1/20 each

and the third and fourth plaintiff 3/10 each and totally put together the plaintiffs are entitled for 7/10 shares. The Courts below ignored the

provisions of Section 29(A) of the Hindu Marriage Act by which the unmarried daughter is recorded as coparcener by birth has granted 1/2 share

to the first defendant and another 1/2 share to the second defendant mother, while not giving any share to the plaintiffs, being the daughters. It was

after death of the mother, her share was devolved on the plaintiffs and the first defendant and that basis all the plaintiffs were given jointly 4/10th

shares while the first defendant was given 6/10 share. -

According to the learned Counsel for the appellants, u/s 29(A) of the Hindu Succession Act, the devolution of shares should be equal to that of

the son along with the unmarried daughters.

To show that the unmarried daughter does not become the coparcener after the insertion of Section 29(A) of the Act but from the date of her

birth, the learned Counsel for the appellant would rely upon the Division Bench judgment of this Court rendered in Alamelu Ammal, Rathinam,

Balaji @ Balammal and Govindarajan Vs. Tamizh Chelvi, Krishna Devi (rep. by next friend and mother guardian 1st respt.), Ellappa Reddiar,

Alamelu and Dhevan, . While dealing with the rights of the unmarried daughter u/s 29(A) holding that the right carries from the date of birth of the

unmarried daughter and not from the date of insertion u/s 29(A) of the Act, this Court has given the following verdict:

Section 29-A of the Hindu Succession Act was inserted by the Tamil Nadu Act 1 of 1990 with effect from 25-3-1989. It grants equal rights to an

unmarried daughter in coparcenary property treating her as a coparcener in her own right as a son. Clause (ii) of Section 29-A provides that at the

time of partition of a Hindu Joint Family the coparcenary property shall be divided so as to allot to the daughter the same share as is allottable to a

son. There are two provisos to Clause (ii) with which we are not concerned. Clause (iii) of Section 29-A provides that the property to which a

female coparcener is entitled shall be held by her with the incidents of coparcenary ownership and shall be regarded as property capable of being

disposed of by her by Will or other testamentary disposition, Clause (iv) of Section 29-A provides that a daughter married before the

commencement of Hindu Succession (Tamil Nadu Amendment) Act, 1989 is not entitled to the benefit of Section 29-A, and Clause (v) provides

that Section 29-A does not apply to a partition which had been effected before the date of commencement of the said Amendment Act. Section

29-A of the Act provides that a daughter of a coparcener shall become a coparcener by birth and the Section 29-A of the Act is, no doubt,

prospective in nature. By virtue of Section 29-A of the Act, an unmarried daughter of a Hindu coparcener is regarded as a coparcener by birth.

Section 29-A of the Act, though prospective in operation, draws upon certain prior events that occurred before the introduction of Section 29-A

of the Act of its operation and treats a daughter born before the insertion of Section 29-A of the Act also as a coparcener. We are of the view that

an unmarried daughter does not become a coparcener only from the date of insertion of Section 29-A of the Hindu Succession Act, but she

becomes a coparcener by virtue of her birth in the family of a Hindu.

While concluding the Division Bench has categorically asserted the legal position:

It is true that in considering the point as to her share in the coparcenary properties, if an unmarried daughter born before the date of

commencement of the Hindu Succession (Tamil Nadu Amendment) Act, 1989 is regarded as a coparcener from the date of her birth, any

alienation or gift of the family properties by another coparcener during the interregnum period from the date of her birth till the date of

commencement of the Tamil Nadu Amendment Act, 1989 may be exposed to challenge by the daughter, but that is not a ground to deny the right

by birth granted u/s 29-A of the Hindu Succession Act to an unmarried daughter. We are of the view that Section 29-A is a special provision

giving a statutory right to a daughter treating her as a coparcener in the family and if such right by birth is given to the daughter, it must mean that

she gets the right by birth in the family properties from the date of her birth and it is not a right that would accrue only on the commencement of the

Tamil Nadu Amendment Act, 1989.

In view of the clear legal position as stated above, it is clear that the plaintiffs 3 and 4, who are unmarried, are to be treated equally to that of the

defendants and the devolution of the share of the plaintiffs as stated by the learned Counsel for the appellants be totally put together 7/10th share

while the first defendants share will be 3/ 10th. The judgment and decree of the Courts below stands modified to that effect and there will be a

preliminary decree granting 7/10th share to the plaintiffs put together and 3/10th share to the first defendant.

The second appeal stands allowed with the above direction. No costs.