CIVIL APPEAL 386 of 2002 on 10 October 1996

JUDGMENT

The 4[th] defendant in a suit for partition filed asO.S.417/1996 before the Sub Court, Palakkad challenging thepreliminary decree has filed this appeal.

defendant in a suit for partition filed as

2. The plaintiff had filed the suit for partition of the plaintA and B schedule properties claiming 1/5[th] share over thesame. It is the case of the plaintiff that Velayudhan, his fatherwas the owner in possession of the plaint A and B scheduleproperties. On his death it devolved upon his wife, the firstdefendant and his children, ie; the plaintiff and the defendants2 to 4. The properties were partitioned in the year 1995 and Aschedule was set apart in common as D schedule in thepartition deed. B schedule properties are movable propertieskept in the house situated in the plaint A schedule property.The plaintiff and the defendants were entitled for 1/5 shareeach, was the case of the plaintiff, pleaded by him.

3. The defendants 1 to 3 did not contest the matter andremained absent. The fourth defendant alone contested thecase. It was contended by him that the plaint A schedule property was an item of property set apart to the share ofVelayudhan as per partition deed No.588/1958. Thereafter,Velayudhan acquired some property and all those propertieswere partitioned in the year 1973 as per document No.1677/73of S.R.O., Parli. The plaintiff had sold some items of propertyout of the share set apart to him and the second defendanthad also sold certain extent of property. The remainingproperties were partitioned in the year 1995 as per documentNo.399 of S.R.O, Parli.Some properties were purchased out ofthe funds of the family in favour of defendants 1 and 2. Butthose properties were not included in the above partition.During 1995 partition the plaintiff agreed to surrender his rightin favour of the fourth defendant on or before 10.10.1996 onpayment of Rs.1 lakh by him. But the possession of theproperties were handed over to the plaintiff since he was nothaving sufficient funds and he could not get surrender from theplaintiff. Defendants 1 and 4 and the wife of the 4[th] defendantwere residing in the plaint schedule property. Later, the 1[st]defendant shifted from the house. The suit is bad for partialpartition, hence liable to be dismissed.

4. Before the court below plaintiff was examined as PW1 and Ext.A1 was marked. The 4[th] defendant was examinedas DW1 and Ext.B1 was also marked. The court below afterevaluating the evidence concluded that the plaint scheduleproperty is liable to be partitioned.

5. In this appeal, the 4[th] defendant has raised a claim which has not been raised in the suit that the plaint A scheduleproperty being an ancestral coparcenary joint family property,all the parties are not entitled to 1/5[th] share each. In fact theplaintiff and the 4[th] defendant are entitled to 6/15 each and thedefendants 1 to 3 are entitled to 1/15 share each.

6. Heard the learned counsel for the appellant/fourthdefendant as well the first respondent/plaintiff.

7. The plaint A schedule property is immovable property

and plaint B schedule are movable properties. The claim of theplaintiff for partition of the properties into five equal shareswas allowed by the court below. Admittedly, the parties areHindus belonging to Ezhava Community following HinduMithakshara Law. It is the case of the plaintiff that in thepartition effected in the year 1995 (Ext.A1) plaint A scheduleproperty were set apart as a common property, including thesame as D schedule. Partition is sought for with respect to the said property along with the plaint B schedule movables.

8. The main contention raised by the contestingdefendant is that the suit for partition is bad for partialpartition. But it is pertinent to note that he had set up adifferent case which was not pleaded in the written statementthat the plaint A schedule property being ancestral coparcenaryjoint family property, the plaintiff and the fourth defendant areentitled to get 6/15 share each and the defendants 1 to 3 areentitled to get 1/15 share each. At the outset it is to be notedthat no such plea was raised by the 4[th] defendant in the suit.In fact, the only contention raised was that the suit was badfor partial partition as some properties were omitted to beincluded in partition. The contention raised by him is that in theyear 1958 Velayudhan, his father along with his brothers andmother effected partition in respect of ancestral family propertythrough partition deed 558/1958 of S.R.O, Parli, whereby theA schedule property was set apart to the share of Velayudhan'sbranch and subsequently the male members of the family bornbefore 1970 became coparcener of A schedule property andtherefore the contention that the property is liable to bepartitioned among the plaintiff and the defendants equally are not correct. It is well settled that no evidence can be lookedinto upon a plea never put forward by a party as the pleadingis the foundation of the suit. As DW1, the 4[th] defendant hadcontended that in the year 1973 Velayudhan their fathereffected settlement of some of the properties belonging to thefamily and at that time the plaintiff and the fourth defendantwere minors and a common property was set apart as Fschedule property. Velayudhan died on 18.1.1986. After hisdeath partition was effected in the year 1995 and Dschedule ,which was F schedule in 1973 settlement deed wasset apart as common property. So the plaintiff is claimingshare in A schedule property which is D schedule, the commonproperty. But the contention raised by the 4[th] defendant is thatas the plaintiff and himself being the male members of thefamily born prior to 1970 alone have right over the plaintschedule property by birth along with Velayudhan.

9. The learned counsel for the 4[th] defendant wouldfurther argue that due to the enactment of the Joint HinduFamily Abolition Act there is no coparcenary in the State ofKerala after 1.12.1976 and the properties have the effect ofautomatic partition and the coparceners alone are having right

over the property. So being the male members of the familyVelayudhan, the plaintiff and the 4[th] defendant alone areentitled to get share over the property and their share wouldbe 1/3 and so on the death of Velayudhan, his 1/3[rd] right alonewill be available for partition and the defendants 2 to 4 wouldget 1/15 share each over the property. So in short, it wascontended that the plaintiff as well the 4[th] defendant areentitled to get 6/15 share each over the plaint scheduleproperty and the defendants are entitled to get 1/15[th] share in1/3[rd] share of Velayudhan. As mentioned earlier no suchcontention was raised in the suit and the only contention, wasthat the suit was bad for partial partition.

10. Per contra, the plaintiff placed reliance on thedecision of the Apex Court in Danamma @ Sumar Surpurand another v. Amar and others (2018 (1) KHC 583)wherein it was held that law relating to a joint Hindu familygoverned by the Mithakshara law had undergone unprecedentchanges. The said changes have been brought forward toaddress the growing need to merit equal treatment to thenearest female relatives, namely daughters of a coparcener.The section stipulates that a daughter would be a coparcener from her birth, and would have the same rights and liabilitiesas that of a son. The daughter would hold property to whichshe is entitled as a coparcenery property, which would beconstrued as property capable of being disposed of by hereither by a will or any other testamentary disposition. Thesechanges have been sought to be made on the touchstone ofequality.

11. So as per Section 6 of Hindu Succession Act, 1956the daughter of a coparcener shall by birth become acoparcener in her own right in the same manner as the sonand the amended provisions recognized rights of coparcener'sdaughters since birth. In short, it was held that the rights ofcoparceners emanate and flow from birth (now includingdaughters) is evident by sub section (1)(a) and b of Section 6of the Hindu Succession Act.

It is important to note that

Para nos.23 and 24 of Dhanamma's case reads asfollows:- “23. The law relating to a joint Hindu family governedby the Mitakshara law has undergone unprecedentedchanges. The said changes have been brought forwardto address the growing need to merit equal treatment to the nearest female relatives, namely daughters of acoparcener. The section stipulates that a daughterwould be a coparcener from her birth, and would havethe same rights and liabilities as that of a son. Thedaughter would hold property to which she is entitledas a coparcenary property, which would be construedas property being capable of being disposed of by hereither by a will or any other testamentary disposition.These changes have been sought to be made on thetouchstone of equality, thus seeking to remove theperceived disability and prejudice to which a daughterwas subjected. The fundamental changes broughtforward about in the Hindu Succession Act, 1956 byamending it in 2005, are perhaps a realization of theimmortal words of Roscoe Pound as appearing in hiscelebrated treaties. The Ideal Element in Law, that“the law must be stable and yet it cannot stand still.Hence all thinking about law has struggled to reconcilethe conflicting demands of the need of the stabilityand the need of change.”

24. S.6, as amended, stipulates that on and from thecommencement of the amended Act, 2005, thedaughter of a coparcener shall by birth become acoparcener in her own right in the same manner asthe son. It is apparent that the status conferred uponsons under the old section and the old Hindu Law wasto treat them as coparceners since birth. Theamended provisions now statutorily recognizes therights of coparceners of daughters as well since birth.The section uses the words in the same manner as the son. It should therefore be apparent that both thesons and the daughters of a coparcener have beenconferred the right of becoming coparceners by birth.It is the very factum of birth in a coparcenary thatcreates the coparcenary, therefore the sons anddaughters of a coparcener become coparceners byvirtue of birth. Devolution of coparcenary property isthe later stage of and a consequence of death of acoparcener. The first stage of a coparcenary isobviously its creation as explained above, and as iswell recognized. One of the incidents of coparcenary isthe right of a coparcener to seek a severance ofstatus. Hence, the rights of coparceners emanate andflow from birth (now including daughters) as isevident from sub-section (1)(a) and (b).”

12. So under Section 6 of the Act the daughter of thecoparcener has been made as a co-parcener by birth in herown right in the same manner as the son of a coparcener. Theargument of the learned counsel for the 4[th] defendant thatDhanamma's case based on the amendment to HinduSuccession Act 2005, is not applicable as the preliminarydecree under challenge was passed before 2005. But here in1995 partition A schedule was set apart as common, to whichthe plaintiff and defendants are co-owners in joint possession.Ext.A1 is the partition deed of the year 1995 by which all the parties to the suit partitioned the property and the subjectmatter of partition is the D schedule kept as common.Partition is sought for on the basis of Ext.A1, the suitdocument. In 1995 partition all the parties joined together andpartitioned the property equally among them and the daughterof the coparcener has same rights bestowed on the son of acoparcener and it was without excluding the female membersof the family. Equal share was given to the male and femalemembers and 'D' schedule was set apart as common. The saidproperty is sought to be partitioned, to which each had aninherent title. Therefore the argument (without pleadings) thatthe law applicable before Amendment Act 2005, disentitle fromclaiming equal shares, is of no merits in the given set of factsand evidence. It is also to be noted that no evidence wasadduced to prove that the plaintiff agreed to surrender his rightto the 4[th] defendant on payment of one lakh on or before10.10.1996. D schedule which is A schedule is liable to bepartitioned among the parties and therefore all the parties areentitled to equal share in A schedule . The contention that the4[th] defendant is entitled to 6/15[th] share as that of the plaintiffneed not be considered in absence of specific pleadings in the suit.

In view of the above findings, it is clear that the present appeal is liable to be dismissed as there is no merits in thecontention raised by the 4[th] defendant/appellant.

Consequently, the appeal is dismissed. The parties shallbear their respective costs. Pending application(s) if any willalso stand dismissed.

Sd/-

20.12.2019.

SHIRCY V JUDGE

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