R. Marudha Mooppar vs P. Panchavarnam

A. Selvam, J.—The unsuccessful and also undaunted defendant has challenged the concurrent Judgments and decrees passed in Original Suit No. 330 of 2001 by the Sub Court, Aruppukottai and in Appeal Suit No. 19 of 2005 by the Principal District Court, Virudhunagar District at Srivilliputhur.

The respondent herein as plaintiff has instituted Original Suit No. 330 of 2001 on the file of the trial Court praying to pass a preliminary decree in respect of her half share in the suit properties, wherein the present appellant has been shown as sole defendant.

The nubble of the averments made in the amended plaint can be stated like thus:

The plaintiff is the sister of the defendant and the suit properties are the separate properties of their father by name Rama Moopar and he passed away prior to 25 years leaving behind him the plaintiff and defendant as his legal heirs. After his demise, both the plaintiff and defendant have enjoyed the suit properties in common. Till April 2000, the defendant has given the share of the plaintiff derived from the suit properties and subsequently the defendant has made an attempt to sell away the suit properties. In the suit properties the plaintiff is having half share. The plaintiff has given a legal notice dated 14.09.2001 to the defendant and thereby directed him to effect partition. But the defendant has refused to concede the demand made by the plaintiff and also given a false reply notice dated 01.10.2001. Under the said circumstances, the present suit has been instituted for the relief sought for in the plaint.

In the written statement filed on the side of the defendant it is averred that except the suit 6th item, the remaining suit items are ancestrally belonged to the father of the plaintiff and defendant. In the suit 6th item, the defendant is not having any right. During the life time of father, he has given all the suit properties to the exclusive possession and enjoyment of the defendant and since then the defendant has had enjoyed the suit properties by way of ousting the plaintiff. Under the said circumstances, the plaintiff is not entitled to get partition. It is false to say that the plaintiff and defendant have jointly enjoyed the suit properties till April 2000. At the time of marriage of the plaintiff, enormous amounts have been spent by the father of the plaintiff and defendant. There is no merit in the suit and the same deserves dismissal.

On the basis of the divergent pleadings raised on either side, the trial Court has framed necessary issues and after contemplating both the oral and documentary evidence has decreed the suit as prayed for. Against the Judgment and decree passed by the trial Court, the defendant as appellant has preferred Appeal Suit No. 19 of 2005 on the file of the first appellate Court.

The first appellate Court after hearing both sides and upon reappraising the evidence available on record has dismissed the appeal, whereby and whereunder confirmed the Judgment and decree passed by the trial Court. Against the concurrent Judgments passed by the Courts below, the present second appeal has been preferred at the instance of the defendant as appellant.

As agreed by the learned Counsels appearing for both sides, the present second appeal is disposed of on merits at the stage of admission.

On the side of the appellant/defendant, the following substantial questions of law have been raised for consideration:

(i) Whether the plaintiff ought to have been non suited by applying doctrine of ouster?

(ii) Whether the Courts below ought to have applied Section 23 of the Hindu Succession Act in so far as item 8 of the suit schedule?

(iii) Whether in any event the plaintiff could have only prayed for share in the suit properties in view of the ancestral character attaching to the same?

The nubble of the case of the plaintiff is that all the suit properties are the separate properties of the father of the plaintiff and defendant by name Rama Moopar and he passed away prior to 25 years leaving behind him the plaintiff and defendant as his legal heirs and in all the suit properties the plaintiff is having half share. The defendant is entitled to get the remaining half share. Since the defendant is not amenable for partition, the present suit has been instituted for the relief sought for in the plaint.

It has been contended on the side of the defendant that except the suit 6th item, the remaining suit properties are ancestrally belonged to the father of the plaintiff and defendant and in the suit 6th item, the defendant is not having any manner of right and interest and even during the life time of father, he has given all the suit properties to the exclusive possession and enjoyment of the defendant and that too to the knowledge of the plaintiff and since then the defendant has had enjoyed the suit properties by way of ousting the plaintiff and therefore, the plaintiff is not entitled to get the relief sought for in the plaint.

As explicated earlier, the Courts below have concurrently rejected the contention urged on the side of the defendant.

Before analysing the rival submissions made by either counsel, the Court has to narrate the following admitted facts.

It is an admitted fact that the plaintiff is the sister of the defendant and their father name is Rama Moopar and he passed away prior to 25 years leaving behind him the plaintiff and defendant as his legal heirs.

The specific case of the plaintiff is that all the suit properties are the separate properties of Rama Moopar. The specific case of the defendant is that except item 6 of the suit properties, the remaining items are ancestrally belonged to the said Rama Moopar.

The learned Counsel appearing for the appellant/defendant has attacked the concurrent Judgments and decrees passed by the Courts below mainly on the following grounds:

(a) Except item 6, the remaining suit properties are ancestrally belonged to the father of the plaintiff and defendant viz., Rama Moopar and by way of birth the defendant is having half share and their father has had half share. Only in respect of half share of their father, the plaintiff can claim partition and at the most, the plaintiff is entitled to get only 1/4th share.

(b) The suit 8th item is a dwelling house, wherein the defendant has been residing with his family members and since the plaintiff is a female heir, as per restriction mentioned in Section 23 of the Hindu Succession Act, 1956, the plaintiff is not entitled to get partition.

In order to repel the argument advanced by the learned Counsel appearing for the appellant/defendant, the learned Counsel appearing for the respondent/plaintiff has also equally contended that all the suit properties are the separate properties of Rama Moopar, father of the plaintiff and defendant and it is false to say that all the suit properties are ancestrally belonged to him. Further as per Hindu Succession (Amendment) Act, 2005, restriction created in Section 23 of the Hindu Succession Act, 1956 has been removed and therefore, the plaintiff is entitled to get half share in all the suit properties and the Courts below after evaluating the rival contentions raised on either side, have rightly rejected the contention urged on the side of the defendant and therefore, the concurrent Judgments passed by the Courts below do not warrant interference.

Basing upon the divergent submissions made by either counsel, the Court has to look into as to whether the suit properties are ancestrally belonged to the father of the plaintiff and defendant viz., Rama Moopar or the same are his separate properties.

As adverted to earlier, the specific case of the plaintiff is that all the suit properties are the separate properties of Rama Moopar, the father of the plaintiff and defendant, whereas, the contention of the defendant is that except item 6, the remaining suit properties are ancestrally belonged to the said Rama Moopar.

It is an admitted fact that before instituting the present suit, the plaintiff has chosen to give a legal notice dated 14.09.2001 and a copy of the same has been marked as Ex.A1. After receipt of the notice dated 14.09.2001, the defendant has chosen to give the reply notice dated 25.09.2001 and the same has been marked as Ex.A2. In Ex.A2 it has been clinchingly admitted that all the suit properties are the separate properties of Rama Moopar. Therefore, from the clear admission made by the defendant in Ex.A2 would go to show without any dubitation that all the suit properties are the separate properties of the said Rama Moopar, the father of the plaintiff and defendant.

Of course, it is true that in the plaint it has been clearly averred that all the suit properties have been purchased by the said Rama Moopar. But on the side of the plaintiff no sale deeds have been marked. But at the same time, the court can analyse the above factual aspects on the basis of other evidence on record. It has already been pointed out that in Ex.A2, reply notice, the defendant has clearly admitted that all the suit properties are the separate properties of Rama Moopar. If really except item 6, the remaining suit properties are ancestrally belonged to Rama Moopar, definitely the same would have been mentioned in Ex.A2. After admitting in Ex.A2, in the written statement it is averred that except item 6, all the remaining suit properties are ancestrally belonged to the said Rama Moopar. The same is nothing but brainwave of the Advocate who preferred the written statement.

The present suit is nothing but a suit for partition. Both the plaintiff and defendant are standing in equal footing. Even though a definite stand has been taken on the side of the defendant that except item 6, the remaining suit properties are ancestrally belonged to Rama Moopar, no acceptable and trustworthy document has been filed.

The learned Counsel appearing for the appellant/defendant has made a feckless attempt by way of acciting the following decisions:

(a) Sheela Devi and Others Vs. Lal Chand and Another, , wherein the Honourable Apex Court has held that "as per the Mitakshara law in usage prior to the commencement of the 1956 Act, once a son was born, he acquired an interest in the coparcenary property as an incident of his birth."

(b) In 2008(4) CTC 374 (Bagirathi and Ors. v. S. Manivanan and Anr.), the Division Bench of this Court has held that "daughter can be considered as a coparcenar at time of coming into force of amended provision of Hindu Succession (Amendment) Act (Act 39 of 2005).

In the instant case, the alleged coparcenary has not at all been established on the side of the defendant. The specific case of the plaintiff is that all the suit properties are the separate properties of Rama Moopar, the father of the plaintiff and defendant and the same has been positively established on the side of the plaintiff by way of marking Ex.A2. The present suit has been instituted mainly on the basis that all the suit properties are the separate properties of Rama Moopar and therefore, it is needless to say that the dictums given in the decisions referred to earlier are not applicable to the facts and circumstances of the present case. Therefore, the first contention urged on the side of the appellant/defendant cannot be admitted.

As stated earlier, the learned Counsel appearing for the appellant/defendant has raised his second point to the effect that as per Section 23 of the Hindu Succession Act, 1956, the plaintiff is totally debarred from claiming partition in respect of item 8 of the suit properties.

It is an admitted fact that the suit item 8 is a residential house, wherein the defendant is living with his family members. Section 23 of the Hindu Succession Act, 1956 reads as follows:

Special provision respecting dwelling- houses.- Where a Hindu intestate has left surviving him or her both male and female heirs specified in class I of the Schedule and his or her property includes a dwelling-house wholly occupied by members of his or her family, then, notwithstanding anything contained in this Act, the right of any such female heir to claim partition of the dwelling-house shall not arise until the male heirs choose to divide their respective shares therein; but the female heir shall be entitled to a right of residence therein:

Provided that where such female heir is a daughter, she shall be entitled to a right of residence in the dwelling-house only if she is unmarried or has been deserted by or has separated from her husband or is a widow.

From the close reading of the said provision, it is made clear that if any Hindu dies intestate leaving behind him or her, both male and female heirs specified in Clause I of the Schedule, the female heir cannot claim partition of a dwelling-house, where any male member is residing and she can work out her remedy only when male heirs choose to divide the same. Further it is made clear that if the female heir is a daughter, she is entitled to right of residence till she married or if she has been deserted or separated from her husband or she is a widow.

The learned Counsel appearing for the respondent/plaintiff has befittingly drawn the attention of the Court to the decision reported in G. Sekar Vs. Geetha and Others, , wherein the Honourable Apex Court has held that "it is not doubt true that such amendment has come into force during pendency of appeal. However, even assuming that there was any embargo at the time of filing the suit or passing the Judgment by the learned Single Judge as contemplated u/s 23 of the Act as it stood, in view of the amendment and deletion of such provision, it is obvious that there is no such embargo after 09.09.2005. In other words, after 09.09.2005 any female heir can seek for partition even in respect of a dwelling house. This subsequent event arising out of change in law is obviously to be applied and, therefore, the question of applying bar u/s 23 of the Act no longer arises for consideration."

The learned Counsel appearing for the appellant/defendant has made an inert attempt by way of advancing argument to the effect that the Hindu Succession (Amendment) Act, 2005 has come into force on 09.09.2005 and the same is applicable only when succession arises on 09.09.2005 or subsequently and in the instant case, the father of the plaintiff and defendant viz., Rama Moopar has passed away prior to 25 years and therefore, the Hindu Succession (Amendment) Act, 2005 is not applicable to the present case.

As enunciated earlier, as per Section 23 of the Hindu Succession Act 1956, an embargo has been created in respect of right of partition of female heir or heirs with regard to dwelling house. But the said section has been deleted by way of passing the Hindu Succession (Amendment) Act, 2005. The purport of the Hindu Succession (Amendment) Act, 2005 is to give right of partition to female heir or heirs by way of deleting the interdiction created in Section 23 of the said Act. Since the purport of the Hindu Succession (Amendment) Act, 2005 is to give right of partition to female heir or heirs in respect of dwelling house, it is totally meaningless to contend that female heir or heirs can seek partition in respect of dwelling house only if succession opens either on 09.09.2005 or subsequently.

In G. Sekar Vs. Geetha and Others, , the Honourable Apex Court has vividly held that Hindu Succession (Amendment) Act, 2005 is applicable even to pending cases. Therefore, it is easily discernible that no deadline has been created in Hindu Succession (Amendment) Act, 2005. Under the said circumstances, the argument advanced by the learned Counsel appearing for the appellant/defendant is totally illegal and the same is also nothing but a chop-logic and the same cannot be given effect to.

The first and foremost substantial question of law raised on the side of the appellant/defendant is that the plaintiff is non suited by way of doctrine of ouster.

In the written statement, plea of ouster has been raised. But the same has not been positively established. Even the defendant has not come to witness box so as to prove the alleged ancestral character of the suit properties as well as the plea of ouster. But his son by name Ramesh Kumar has been examined as D.W.1 and his evidence cannot be believed in with regard to the plea of ouster as well as the alleged ancestral character of the suit properties and therefore, the first and foremost substantial question of law raised on the side of the appellant/defendant is decided against him.

The second and third substantial questions of law raised in the present second appeal are as to whether the Courts below ought to have applied Section 23 of the Hindu Succession Act, 1956 in respect of item 8 of the suit properties and as to whether the plaintiff is entitled to get only 1/4th share in the suit properties.

It has already been discussed in detail and ultimately found that Section 23 of the Hindu Succession Act, 1956 has no application after advent of Hindu Succession (Amendment) Act, 2005. Therefore, after Hindu Succession (Amendment) Act, 2005, the restriction created in Section 23 of the Hindu Succession Act, 1956 has become useless. Further it has already been pointed out that the plaintiff has positively established that all the suit properties are the separate properties of Rama Moopar, the father of the plaintiff and defendant. The plaintiff is one of the legal heirs specified in Class I of the Schedule and therefore, the plaintiff is having half share in all the suit properties. Under the said circumstances, the second and third substantial questions of law raised on the side of the appellant/defendant are also of no use.

The present suit has been instituted for the relief of partition with regard to half share of the plaintiff. The plaintiff has clearly established that all the suit properties are the separate properties of Rama Moopanar, the father of the plaintiff and defendant and therefore, the plaintiff is entitled to get the relief of partition as prayed for. The Courts below after having elaborate discussion, have uniformly found that all the contentions raised on the side of the defendant are of no use. Therefore, the concurrent Judgments passed by the Courts below are perfectly correct and the same do not call for interference and altogether the present second appeal deserves dismissal.

In fine, this second appeal deserves dismissal and accordingly is dismissed without cost at the stage of admission. connected Miscellaneous Petition is also dismissed. The Judgment and decree passed in Original Suit No. 330 of 2001 by the Sub Court, Aruppukottai, upheld in Appeal Suit No. 19 of 2005 by the Principal District Court, Virudhunagar District at Srivilliputhur are confirmed.