MANGAMMAL @ THULASI AND ANR. versus T.B. RAJU AND ORS. on 19 April 2018

1. Daughter-Appellant No .1, total share would be 1/8 +1/24 = 4/24 or 1/6.

2. Daughter-Appellant No. 2, total share would be 1/8 +D1/24 = 4/24 or 1/6.

3. Son-Respondent No. 1, total share would be ½ + 1/8 +1/24 = 16/24 or 2/3. [Para 13] [785-B-E]

3. Any sale which made to Respondent Nos. 2 & 3 inpursuance of two sale deeds shall not be disturbed anymore. InElieu of the same, the appellants shall be entitled to their legitimateshare, if any, which belonged to them in such properties and whichhad been sold through sale deeds from Respondent No. 1 by wayof money or some other property of the same amount. The price of the properties shall be calculated according to the rateFprevailing at the date of sale deeds respectively along withinterest @ 9 per cent per annum from the date of sale deeds tillthe payment of money or transfer of property. Here, legitimateshare means share which appellants have got through the divisionof property as mentioned. [Para 14] [785-F-H]

4. To sum up the case, the appellants are not entitled toany share in coparcenary property since they were not thecoparceners in view of 1989 amendment. However, on the deathof their father and mother, appellants would get their propertythrough succession in the above manner. [Para 15] [786-A-B]

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Prakash & Ors. v. Phulavati & Ors. (2016) 2 SCC 36 ;Danamma @ Suman Surpur & Anr. v. Amar & Ors.2018 (1) SCALE 657 – referred to.

Case Law Reference

(2016) 2 SCC 36

2018 (1) SCALE 657

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1933of 2009

From the Judgment and Order dated 18.09.2006 of the High Courtof Judicature at Madras in S.A. No. 780 of 2006.

V. Prabhakar, Ms. Jyoti Parasher, N. D. Ram Chandar (forMrs. Revathy Raghavan), Advs. for the Appellants.

Puneeth K.G., Ms. Astha Sharma, Mohit Paul, Advs. for theRespondents.

The Judgment of the Court was delivered by

R. K. AGRAWAL, J. 1. This appeal is preferred against theimpugned judgment and order dated 18.09.2006 passed by the High Courtof Judicature at Madras in S.A. No. 780 of 2006 whereby learned singleJudge of the High Court dismissed the appeal filed by the appellantsherein at the admission stage.

2. Brief facts:-

(a) The case of the appellants, in a nutshell, is that the appellantsherein are the daughters of Late Shri T.G. Basuvan (died on 29.12.1979)and Late Smt. Sundari (died on 22.07.1989) whereas Respondent No. 1is the brother of the appellants herein. Late T.G. Basuvan left threeproperties consisting of agriculture land (Item Nos. 1 & 2) and dwellinghouse (Item No. 3)

(b) Later on, due to the irresponsible behaviour of RespondentNo. 1, suit properties at Item Nos. 1 and 2 were leased out to RespondentNos. 2 to 4 herein during the lifetime of the mother of the appellantsherein.

(c) During the lease period, the mother of the appellants died. Onthe expiry of said lease deed, the appellants herein through legal notice A

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Aapproached the Respondent Nos. 2 to 4 to deliver the vacant possessionof Item Nos.1 and 2. In reply, it has been stated that the lands were soldto them by Defendant No. 1.

(d) Being aggrieved, the appellants instituted a suit being O.S.No. 202 of 2003 praying, inter-alia, for the partition and separateBpossession of the suit properties which consisted of three items, namely,agriculture land (Item Nos. 1 and 2) and building site with constructedbuilding (Item No. 3) and arrayed the brother as Defendant No. 1 andlessees/subsequent buyers as Defendant Nos. 2 to 4. The appellantsherein were the plaintiffs in the original suit (e) The trial Court, after hearing the suit at length, dismissed thesame, vide judgment dated 28.09.2004 while holding, inter alia, that theplaint is the creature of the Defendant No. 1 and the plaintiffs, whobeing the puppets in the hands of Defendant No. 1, are not entitled toany partition.

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D(f) Being dissatisfied, the appellants took the matter before theDistrict Judge, Udhagamandalam. Learned District Judge, vide judgmentdated 14.12.2005, dismissed the appeal while upholding the decision ofthe trial court.

(g) Feeling aggrieved with the decision, the appellants hereinEpreferred a Second Appeal being No. 780 of 2006 before the High Courtof Judicature at Madras. Learned single Judge of the High Court, videorder dated 18.09.2006, dismissed the appeal at the admission stageitself.

(h) Consequently, this appeal has been filed before this Court byway of special leave.F

3. We have given our solicitous consideration to the submissionsof learned counsel appearing for both the parties and perused the relevantmaterial on record.

Point(s) for consideration:-G

4. The short question that arises before this Court is whether inthe light of present peculiar facts and circumstances of the case, anyintervention of this Court is required with the impugned decision of theHigh Court?

Rival contentions:-

5. At the outset, learned counsel for the appellants submitted thatthe High Court failed to appreciate that no limitation has been prescribedfor filing a suit for partition by one or more co-sharers, hence, a suit forpartition cannot be dismissed as being barred by time. Further, it wassubmitted that dismissal of a suit for partition by holding that the appellantsherein have not filed the suit within 12 years from the date of dispossessioncannot be sustained in the eyes of law specially when there is no proofto prove dispossession and the respondents have failed to plead andprove ouster. Hence, the impugned judgment of the High Court is liableto be set aside at the threshold.

6. Per contra, learned counsel for Respondent No. 1 hereinsubmitted that Respondent No. 1 had never been a drunkard and theappellants made such allegations in order to defeat the sale made infavour of Respondent Nos. 2 and 3 and that during the lifetime of theirmother, the suit properties remained un-partitioned and that the propertiesat Item Nos. 1 and 2 having been legally sold to Respondent Nos. 2 and3, hence, the question of seeking partition and separate possession doesnot arise in any circumstance. Further, it was also pointed out that theHigh Court rightly dismissed the case at admission case. Hence, thisappeal also deserves to be dismissed. Learned counsel appearing forother respondents also submitted that they are the bona fide purchasersof the suit property, hence, this appeal deserves to be dismissed beingdevoid of merits.

Discussion:-

Discussion:-

7. Before proceeding further, it is apt to have an understanding ofthe concept of ancestral property in a nutshell. Any property inheritedupto four generations of male lineage from the father, father’s father orfather’s father’s father i.e. father, grand father etc., is termed as ancestralproperty. In other words, property inherited from mother, grandmother,uncle and even brother is not ancestral property. In ancestral property,the right of property accrues to the coparcener on birth. The concept ofancestral property is in existence since time immemorial. In the State ofTamil Nadu, in order to give equal position to the females in ancestralproperty, in the year 1989, the State Government enacted the HinduSuccession (Tamil Nadu Amendment) Act, 1989 effective from March A

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A25, 1989 which brought an amendment in the Hindu Succession Act,1956 (for brevity “the Act”) by adding Section 29-A vide Chapter II-Aunder the heading of Succession by Survivorship. It is apt to reproducethe said provision herein below.

29-A. Equal rights to daughter in coparcenary property-Notwithstanding anything contained in Section 6 of this Act,- B

(i) in a Joint Hindu Family governed by Mitakshara Law, thedaughter of a coparcener shall be birth become a coparcener inher own right in the same manner as a son and have the samerights in the coparcener property as she would have had if shehad been a son, inclusive of the right to claim by survivorship: andshall be subject to the same liabilities and disabilities in respectthereto as the son:

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(ii) at a partition in such a Joint Family the coparcener propertyshall so divided as to allot to a daughter the same share as isallotable to a son:

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Provided that the share which a pre-deceased son or a pre-deceased daughter would have got at the partition if he or she hadbeen alive at the time of the partition shall be allotted to the survivingchild of such pre-deceased son or of such pre-deceased daughter:

Provided further that the share allotable to the pre-deceasedchild of pre-deceased son or pre-deceased daughter, if such childhad been alive at the time of the partition, shall be allotted to thechild of such pre-deceased child of the pre-deceased son or ofthe pre-deceased daughter, as the case may be:

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(iii) any property to which a female Hindu becomes entitled byvirtue of the provisions of clause (i) shall be held by her with theincidents of coparcenary ownership and shall be regarded,notwithstanding anything contained in this Act or any other lawfor the time being in force, as property capable of being disposedof by her by will or other testamentary disposition:

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(iv) nothing in this Chapter shall apply to a daughter marriedbefore the date of the commencement of the Hindu Succession(Tamil Nadu Amendment ) Act , 1989:

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(v) nothing in clause (ii) shall apply to a partition which hadbeen effected before the date of commencement of the HinduSuccession ( Tamil Nadu Amendment) Act, 1989.

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8. At this juncture, it is to be examined as to whether the appellantswere entitled to claim partition in ancestral property in view of theamendment? If the answer to this question is affirmative then only furtherdetermination of dispute would arise. Prior to the amendment, it wasonly the male who would have been coparcener and entitled to claim thepartition and share from the joint family property. On the other hand,daughter did not have any right to partition and to claim share in theancestral property since she was not a coparcener. At the most, at thetime of partition, she could only ask for reasonable maintenance andmarriage expenses.

9. To cut a long story short, it is undisputed fact that Late T.G.Basuvan, father of the appellants, had only ancestral properties and hedid not left behind any self acquired properties. On a plain reading of thenewly added provision i.e., Section 29-A of the Act, it is evident that,inter-alia, daughter of a coparcener ought not to have been married atthe time of commencement of the amendment of 1989. In other words,only un-married daughter of a coparcener is entitled to claim partition inthe Hindu Joint Family Property. In the instant case, it is admitted positionthat both the appellants, namely, Mangammal, got married in the year1981 and Indira, got married in or about 1984 i.e., prior to thecommencement of the 1989 amendment. Therefore, in view of clause(iv) of the Section 29-A of the Hindu Succession (Tamil NaduAmendment) Act, 1989, appellants could not institute the suit for partitionand separate possession at first instance as they were not thecoparceners.

10. Moreover, under Section 29-A of the Act, legislature has usedthe word “the daughter of a coparcener”. Here, the implication of suchwordings mean both the coparcener as well as daughter should be aliveto reap the benefits of this provision at the time of commencement ofthe Amendment of 1989. The similar issue came up for the considerationbefore this Court in Prakash & Ors. vs. Phulavati & Ors., (2016) 2SCC 36, this Court while dealing with the identical matter held at Para23 as under:-

23. Accordingly, we hold that the rights under the amendment areapplicable to living daughters of living coparcenersas on 9[th]September, 2005 irrespective of when such daughters areborn……”

(emphasis supplied by us)

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AIt is pertinent to note here that recently, this Court in Danamma@ Suman Surpur & Anr. Vs. Amar & Ors, 2018 (1) Scale 657 dealt,inter-alia, with the dispute of daughter’s right in the ancestral property.In the above case, father of the daughter died in 2001, yet court permittedthe daughter to claim the right in ancestral property in view of theamendment in 2005. On a perusal of the judgment and after havingBregard to the peculiar facts of the Danamma (supra), it is evident thatthe Division Bench of this Court primarily did not deal with the issue ofdeath of the father rather it was mainly related to the question of lawwhether daughter who born prior to 2005 amendment would beentitled to claim a share in ancestral property or not? In suchCcircumstances, in our view, Prakash & Ors. (supra), would still holdprecedent on the issue of death of coparcener for the purpose of right ofdaughter in ancestral property. Shortly put, only living daughters of livingcoparceners would be entitled to claim a share in the ancestral property.

11. Hence, without touching any other aspect in the present case,Dwe are of the view that the appellants were not the coparceners in theHindu Joint Family Property in view of the 1989 amendment, hence,they had not been entitled to claim partition and separate possession atthe very first instance. At the most, they could claim maintenance andmarriage expenses if situation warranted.

-EDivision of the Property:

12. However, as appears from the record of the case and also inview of the contention of the parties, the coparcener property in thehand of Late T.G. Basuvan got divided between him and his sonT.B.Raju-Respondent No. 1. In such partition, Late T.G. Basuvan got ½Fshare and T.B. Raju also got ½ share. Now the property left in the handof Late T.G. Basuvan would be his separate property. On his death,such separate property would devolve through succession by applyingthe rules of Sections 8, 9 & 10 of the Hindu Succession Act, 1956 in thefollowing manner:

G· Widow i.e. mother of the appellants would get ¼ of the halfshare which stands at 1/8.

· Daughter Mangammal-Appellant No. 1 would get ¼ of the halfshare which stands at 1/8.

· Daughter Indira-Appellant No. 2 would get the ¼ of the halfHshare which stands at 1/8.

· Son T.B.Raju-Respondent No. 1 would get the ¼ of the halfshare which stands at 1/8. This 1/8 share would be in additionof ½ share which he got in partition.

13. On the death of the widow i.e., mother of the appellants, her1/8 share which she got in succession, would devolve through successionby applying the rules of Sections 15 & 16 of the Hindu Succession Act,1956 in the following manner:

· Daughter Mangammal-Appellant No. 1 would get the 1/3 ofthe 1/8 which stands at 1/24.

· Daughter Indira-Appellant No. 2 would get the 1/3 of the 1/8which stands at 1/24.

· Son T.B.Raju-Respondent No. 1 would get the 1/3 of the 1/8which stands at 1/24.

Final Share of Each Person:-

1. Daughter Mangammal-Appellant No .1, total share would be1/8 + 1/24 = 4/24 or 1/6.

2. Daughter Indira-Appellant No. 2, total share would be 1/8 +1/24 = 4/24 or 1/6.

3. Son T.B.-Respondent No. 1, total share would be ½ + 1/8 +1/24 = 16/24 or 2/3.

14. At this juncture, we would like to make it clear that any salewhich made to Respondent Nos. 2 & 3 in pursuance of two sale deedsdated 03.04.1996 and 24.08.1998 respectively shall not be disturbedanymore. In lieu of the same, the appellants shall be entitled to theirlegitimate share, if any, which belonged to them in such properties andwhich had been sold through sale deeds from Respondent No. 1 by wayof money or some other property of the same amount. The price of theproperties shall be calculated according to the rate prevailing at the dateof sale deeds respectively along with interest @ 9 per cent per annumfrom the date of sale deeds till the payment of money or transfer ofproperty. Here, legitimate share means share which appellants have gotthrough the division of property as mentioned above in paragraphNos. 12 and 13.

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[2018] 6 S.C.R.

A15. To sum up the case, the appellants are not entitled to anyshare in coparcenary property since they were not the coparceners inview of 1989 amendment. However, on the death of their father andmother, appellants would get their property through succession in theabove manner.

B16. In view of above discussion, we, hereby, partially allow theappeal in the above terms leaving the parties to bear their own cost.

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Ankit Gyan

Appeal partly allowed.

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