THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 07.07.2008 CORAM THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN A.S.No.77 of 1998 H.Vasanthi .. Appellant / Plaintiff Vs. 1.H.Madhava Rao 2.H.Prakash Rao 3.A.Santha .. Respondents / Defendants Prayer :- This appeal has been preferred under Section 96 of CPC against the decree and judgment dated 08.08.1997 passed in O.S.No.746 of 1996 on the file of the VIII Additional Judge, City Civil Court, Chennai. For Appellant : Mr.S.V.Jayaraman, Senior Counsel for Mr.S.Rajasekar For Respondents : Mr.T.V.Ramanujam, Senior Counsel for Mr.D.T.Janardhanan, Advocate (for R3) JUDGMENT
This appeal has been directed against the decree and judgment in O.S.No.746 of 1996 on the file of the VIII Additional Judge, City Civil Court, Chennai. The plaintiff is the appellant herein. The plaintiff in O.S.No.746 of 1996 is the daughter of D1 and the sister of D2.
2.The averments in the plaint relevant for the purpose of deciding this appeal runs as follows:-
The plaint schedule property viz., out house with ground and first floor and land of an extent of 1-1/3 ground (one ground and 800 sq.ft.) forming part of Old No.68, Gomathy Narayanaswamy Road, now in New No.24/1, Gomathy Narayanaswamy Raod, T.Nagar, Madras-600 017 within the registration district of Madras-Chengleput, Sub-Registration District of Thyagarayanagar, bearing S.No.59 (part) T.S.No.8633 (part), belongs to the first defendant, father of the plaintiff, by inheritance from his (D1) father Mr.H.Venkat Rao. The father of D1 viz. H.Venkat Rao died intestate leaving his only son D1 as his legal heir. D2 is the son of D1. Besides D2, D1 is having three daughters viz., Geetha, Nalini and Vasantha (plaintiff). D1 and D2 have entered into a sale agreement with D3 on 18.7.1974 in respect of the plaint schedule property for a total sale consideration of Rs.62,500/-. On the date of sale agreement itself a sum of Rs.10,000/- was paid by D3 to D1 & D2 by way of advance. According to the deed of agreement dated 18.7.1974, D3 has to clear two mortgage debts of the suit property and the balance of amount of sale price has to be paid to the vendors (D1 & D2). As per the sale agreement, sale deed is to be executed within seven months from the date of sale agreement. But the sale deed was not registered within the time stipulated under the sale agreement. The third defendant filed O.S.No.2595 of 1981 before the City Civil Court, Chennai, for specific performance of contract on the basis of sale agreement dated 18.7.1974. The suit was dismissed by the trial Court on 11.08.1982. The third defendant / purchaser preferred an appeal before the High Court under Appeal No.165 of 1984, which was allowed. D1 & D.2 are the absolute owners of the entire suit property. The plaintiff’s marriage took place after 25th March-1989, the date of which the Hindu Succession (Tamil Nadu Amendment) Act 1989 came into force, under which the plaintiff is entitled to 1/3rd share in the plaint schedule property, which was sold by D1 & D2 to D3 without her consent. Out of three daughters of D1, the plaintiff got married on 09.07.1989. As per Section 29-A of the Amended Act, the plaintiff is entitled to 1/3rd share in the suit property which is the joint hindu family property of D1. The co-parcenery right in the suit property accrues to the plaintiff on 25.3.1989, when the appeal for specific performance of the sale agreement dated 18.7.1974 was pending before the High Court. After the marriage on 9.7.1989, the plaintiff went to Bangalore to live with her husband, who has been employed there. The cause of action for the suit arose on 13.3.1995. The third defendant has no right whatsoever against the plaintiff nor she has any right of 1/3rd of the suit property belonging to the plaintiff. Hence, the suit for partition of plaintiff’s 1/3rd share in the plaint schedule property and for consequential injunction.
3.The 1st and 2nd defendants have filed a joint written statement contending as follows:-
The plaintiff is the daughter of D1. She married on 09.07.1989. The suit property is the ancestral property of these defendants. These defendants entered into an agreement of sale with the 3rd defendant herein on 18.7.1974 in respect of the plaint schedule property. D3 did not act in accordance with the terms and conditions adumbrated in the agreement of sale. D3 filed a suit for specific performance of contract on the basis of the sale agreement dated 18.7.1974 under O.S.No.2595 of 1981 on the file of the IV Additional Judge, City Civil Court, Chennai. The said suit was dismissed on 11.08.1982. Aggrieved by the findings of the learned Trail Judge, D3 filed an appeal in A.S.No.165 of 1984 before this Court. The said appeal was allowed on 13.03.1995 and SLP(Civil).No.10689 of 1995 preferred against the decree and judgment in A.S.No.165 of 1984 was also dismissed by the Honourable Apex Court. Thereafter, the third defendant filed an execution petition in E.P.No.2574 of 1995 on the file of the X Assistant Judge, City Civil Court, Chennai, for executing the decree for specific performance. The said EP is still pending. In the mean while, the plaintiff has filed the suit for partition and separate possession of her 1/3rd share in the plaint schedule property, on the ground that as per Hindu Succession (Tamil Nadu Amended) Act, 1989, which came into force on 25.03.1989, she is entitled for 1/3rd share in the plaint schedule property. D1 and D2 are accepting the legal position claimed by the plaintiff. As per section 29-A of the Hindu Succession Act 1986 as amended by Hindu Succession(TamilNadu) Act,1989 the plaintiff is entitled for 1/3rd share in the suit property. Hence, the suit may be decreed.
4.The contesting third defendant in her written statement would contend that the plaintiff has no right or title in respect of the plaint schedule property ie., House and premises bearing No.24/1, G.N.Chety Road, T.Nagar, Chennai-17. The plaintiff has been set up by her father H.Madhava Rao and brother H.Prakash Rao, 1st and 2nd defendants, to thwart the realisation of the fruits of the judgment which has been obtained by this defendant in O.S.No.2595 of 1981 as plaintiff. This defendant has entered into an agreement of sale dated 18.07.1974 with D1 & D2, the plaintiff is aware of the said agreement for the last 21 years and she is living with her father and brother ie., D1 & D2 in the same house. She was married on 09.07.1989. She did not take steps to implead herself in the appeal, which was vehemently contested by her father and brother. She is thus estopped from claiming any share in the suit property. Taking into consideration the entire proceeding commencing from Agreement to sell dated 18.07.1974 upto the judgment by the Supreme Court, it must be deemed in law that the sale of the property itself took place on 18.7.1974 on which date she had no right whatsoever in this property. The sole basis of the plaintiff’s claim is Hindu Succession (Tamil Nadu Amendment) Act 1989. The precondition for application of the act is existence of a Joint Hindu Family as on date of coming into force of the Act. The plaintiff herself had admitted in writing that the joint Hindu Family became divided even prior to 24.2.1980. Thus there was no joint Hindu Family existing as on 25.3.1989 and the Act has no application to the plaintiff at all. The declaration that the plaintiff is co-parcener therefore cannot be granted. Further, the plaintiff, the defendants 1 and 2 along with her two sisters H.Geetha and H.Nalini entered into a deed of partition dated 24.2.1980 (Doc.No.275/80 SRO T.Nagar). In this the plaintiff and her two sisters were allotted 4014 sq.ft of the property abutting suit property along with 1/3rd undivided share in two common passages. The plaintiff clearly admitted that the suit property belonged to her father and brother. She is estopped from making any claim to the contrary. This also established the fact that there was no Joint Hindu Family even on that date. After the partition by sale deed dated 5.3.1980 (Doc.No.491/80 SRO T.Nagar), the plaintiff and her two sisters have also sold the property allotted to them to one Thillai Thukaram. Even presuming that the plaintiff has any right in the joint family property she cannot claim any further share in the same. The plaintiff filed the suit on 12.6.1995 only because as per High Court’s order the Trial Court should have executed the sale deed on or before 12.6.1995. In any event the plaintiff can only sue her father and brother for her share in the sale proceeds which they have got from this defendant. Even if the suit property was considered as a joint family property comprising plaintiff also as the co-parcener her father as Kartha having entered into agreement to sell for the proper value of the suit property, for the benefit of the family, the plaintiff cannot question such a transaction and is bound by the ultimate decision of the Court in the suit for specific performance. As per the Hindu Succession (Tamil Nadu Amendment) Act 1989 ‘Nothing in Clause (ii) of Section 29-A shall apply to a partition which has been effected before the date of commencement of Hindu Succession (Tamil Nadu Amendment) Act, 1989. There is no cause of action to the plaintiff for filing the suit. The suit is barred by limitation. Hence, the suit is liable to be dismissed.
5.On the above pleading, the learned trial Judge has framed as many as five issues for trial. The plaintiff has examined herself as P.W.1 and exhibited Ex.A.1 to Ex.A.3. The second defendant was examined as D.W.1 and husband of D3 was examined as D.W.2 and no document was exhibited on the side of the defendants. After meticulously going through the evidence both oral and documentary, the learned trial Judge has come to the conclusion that the plaintiff is not entitled to any relief under the suit and accordingly, dismissed the suit with cost of D3. Aggrieved by the findings of the learned Trial Judge, the plaintiff has preferred this appeal.
6.The following points arose for determination in this appeal:-
(1)Whether the plaintiff in O.S.No.746 of 1996 on the file of the VIII Additional Judge, City Civil Court, Chennai, is entitled to a decree for partition of her 1/3rd share in the plaint schedule property in lieu of section 29-A(v) of the Hindu Succession Act?
(2)Whether the suit for partial partition is maintainable?
(3)Whether the decree and judgment in O.S.No.746 of 1996 on the file of the VIII Additional Judge, City Civil Court, Chennai, is liable to be set aside for the reasons stated in the memorandum of appeal?
7.Point Nos.1 & 2:- The suit in O.S.No.746 of 1996 on the file of the VIII Additional Judge, City Civil Court, Chennai, is a off-shoot of an earlier suit filed by D3 herein as plaintiff in O.S.No.2595 of 1981 before the City Civil Court, Chennai. It is the admitted case of the plaintiff and defendants that the subject matter of the suit in O.S.No.2595 of 1981 and O.S.No.746 of 1986 are one and the same. But the plaintiff in O.S.No.746 of 1996 is not a party in O.S.No.2595 of 1981.
7(a) According to the learned Senior Counsel Mr.S.V.Jayaraman appearing for the appellant, there was a partition deed entered into between the plaintiff, her sisters, her brother (D2) and her father (D1) under Ex.A.3 and that the property scheduled to Ex.A.3 is a joint family property of D1, D2, plaintiff and her sisters and that Ex.A.3-partition took place on 24.2.1980, on which date Section 29-A of the Hindu Succession Act was not in force. The learned Senior Counsel for the appellant would further contend that under Ex.A.3 the entire property scheduled to Ex.A.3 was not partitioned and the property identified as B1, F, E, A1 which is situated North of Plot A, B & C to the plan appended to Ex.A.3 was left open without partition and that subsequent to Ex.A.3-partition, a sale agreement was entered into between D1 & D2 and D3 in respect of the property which is situated North of plot A, B & C shown in the plan appended to Ex.A.3 and that D3 had filed a suit for specific performance of a contract before the City Civil Court, Chennai, in O.S.No.2595 of 1981 against D1 & D2 herein, which was dismissed by the Trial Court, but on appeal both the High Court as well as Honourable Apex Court passed a decree in favour of the plaintiff (D3 herein) in O.S.No.2595 of 1981. It is the case of the appellant that since the agreement in respect of the subject matter in O.S.No.2595 of 1981 dated 18.07.1974, was before Ex.A.3, and subsequent to the amendment of Section 29 of the Hindu Succession Act, 1989 as Section 29-A, the plaintiff is entitled to partition of her 1/3rd share in the property scheduled to O.S.No.2595 of 1981 ie., the subject matter in the sale agreement dated 18.07.1974 entered into by D1 & D2 with D3. Section 29-A of the Hindu Succession Act, 1956 runs as follows:-
Equal rights to daughter in coparcenary property:- Notwithstanding anything contained in section 6 of this Act,_
(i)in a joint Hindu Family governed by the mitakshara law, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son and have the same rights in the coparcenary property as she would have had if she had been a son, inclusive of the right to claim by surviorship; and shall be subject to the same liabilities and disabilities in respect thereto as the son;
(ii)at a partition in such a joint Hindu family the coparcenary property shall be so divided as to allot to a daughter the same share as is allotable to a son;
Provided that the share which a pre-deceased son or a pre-deceased daughter would have got at the partition if he or she had been alive at the time of the partition shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter;
Provided further that the share allotable to the pre-deceased child of pre-deceased son or of a pre-deceased daughter, if such child had been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or of the pre-deceased daughter, as the case may be;
(iii)any property to which a female Hindu becomes entitled by virtue of the provisions of clause (i) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force, as property capable of being disposed of by her by Will or other testamentary disposition;
(iv)nothing in this Chapter shall apply to a daughter married before the date of the commencement of the Hindu Succession (Tamil Nadu Amendment) Act, 1989;
(v)nothing in clause (ii) shall apply to a partition which had been effected before the date of the commencement of the Hindu Succession (Tamil Nadu Amendment) Act, 1989.”
So it is clear from Section 29-A (v) of the Hindu Succession Act the benefits conferred under Section 29-A of the said Act by way of Tamil Nadu Amendment Act, 1989, will not be applicable to a partition, which had been effected between the co-shares before the date of commencement of Hindu Succession (Tamil Nadu Amendment)Act, 1989. But Ex.A.3-partition between D1, D2, plaintiff and her sister was effected as early as on 24.2.1980 itself. So the plaintiff cannot take shelter under Section 29-A of the said Act to claim 1/3rd share in the property scheduled to Ex.A.3-partition deed. Further relying on the nomenclature of Ex.A.3 (deed of partial partition), the plaintiff would claim that the property scheduled to the plaint in O.S.No.2595 of 1981 was not partitioned under Ex.A.3 in full and hence, the suit filed by her for partition in respect of the property not partitioned under Ex.A.3 is valid. If it is so the plaintiff would have scheduled to the plaint the entire property scheduled to Ex.A.3 because Ex.A.3 itself is not a partition deed but is only a deed of partial partition. The total extent of the property scheduled to Ex.A.3 is 5 grounds and 1,185 sq.ft = 13,185 sq.ft. A perusal of Ex.A.3 will go to show that the plaintiff herein was shown as a party No.3 along with her sister Geetha and Nalini. Under Ex.A.3 ‘C’ schedule to Ex.A.3 was allotted to the plaintiff Vasanthi and her unmarried sister Nalini and Geetha. An extend of 4,014 sq.ft marked as plot ‘B’ in the plan appended to Ex.A.3 was allotted to the plaintiff and her two sisters. As P.W.1 in the cross-examination, plaintiff would admit that plot ‘B’ allotted to her and her two sisters under Ex.A.3 partition deed was sold by her to one Thukkaram on 5.3.1980 for Rs.90,000/-. She would further admit that even in the said sale deed the boundaries on the north were shown as the property belonging to her father (D1) and brother (D2) and that the said Thukkaram also sold the said plot ‘B’ to one Hari Sakthi. So in effect the plaintiff has admitted Ex.A.3-partition and also to the effect that the property north of plot No.B marked in the plan appended to Ex.A.3 belongs to her father (D1) and her brother (D2). Admittedly she and her sister have sold plot ‘B’ allotted to them under Ex.A.3 on 5.3.1980. Even before that D1 & D2 have entered into a sale agreement in respect of the property situated north of plot ‘B’ to the plan annexed to Ex.A.3 which is the subject matter of O.S.No.2595 of 1981 (Suit filed by D3 as plaintiff for specific performance of the contract against D1 & D2). The said suit was filed in the year 1981. Till the decree in Appeal No.165 of 1984 on the file of this Court, which had been preferred against the decree and judgment in O.S.No.2595 of 1981, was confirmed by the Honourable Apex Court in SLP.(Civil).No.10689 of 1995, the plaintiff has not filed any suit for partition of her 1/3rd share scheduling the entire property scheduled to Ex.A.3. Admittedly after the disposal of SLP.(Civil).No.10689 of 1995 which had arisen out of the decree and judgment in A.S.No.165 of 1984, an appeal preferred against the decree and judgment in O.S.No.2595 of 1981 on the file of the IV Additional Judge, City Civil Court, Chennai, D3 herein had filed E.P.No.2574 of 1995 in O.S.No.2595 of 1981 before the X Assistant Judge, City Civil Court, Chennai. Thereafter, only the plaintiff has filed C.S.No.953 of 1995 before this Court, which was later transferred to the City Civil Court, Chennai, and renumbered as O.S.No.746 of 1996 on the file of the VIII Additional Judge, City Civil Court, Chennai. So it is clear from the facts of the case that only to thwart D3 from realizing the fruits of the decree in O.S.No.2595 of 1981, D1 & D2 have set up the present plaintiff, who is none other than the daughter of D1 and sister of D2, to file C.S.No.953 of 1995, which has been transferred and renumbered as O.S.No.746 of 1996 on the file of the VIII Additional Judge, City Civil Court, Chennai.
7(b)The learned Senior Counsel Mr.T.V.Ramanujam appearing for the 3rd respondent (D3) would contend that having accepted her share under Ex.A.3 and having kept quiet till the filing of E.P.No.2574 of 1995 in O.S.No.No.2595 of 1981 on the file of the X Assistant Judge, City Civil Court, Chennai, it is not open to the plaintiff to ask for the relief of partition of her 1/3rd share in the property, which is the subject matter in O.S.No.2595 of 1981. The learned senior counsel would further contend that if the plaintiff genuinely wants a partition of the property scheduled to Ex.A.3 she ought to have scheduled the entire property under Ex.A.3, but she had only scheduled the property which is the subject matter of O.S.No.2595 of 1981, which again will amount to partial partition, which cannot be entertained at all under this suit. Cleverly D1 & D2, who are father and brother of the plaintiff herein, have not resisted the case. The learned Senior counsel for the respondent Mr.T.V.Ramanujam would represent that in EP.No.2574 of 1995 the entire sale consideration for the property scheduled to O.S.No.2595 of 1981 (scheduled to E.P.No.2574 of 1995) has been deposited before the Execution Court ie., X Assistant Judge, City Civil Court, Chennai. Even though in the written statement field by D1 & D2, they would say that they have no objection for the plaintiff getting 1/3rd share in the property, they have not comeforward to given 1/3rd of the sale consideration, which has been deposited in E.P.No.2574 of 1995. Once admitting Ex.A.3 and taking her share allotted under Ex.A.3 along with her two sisters and sold the same in the year 1980, admitting that the property on the north of plot ‘B’ allotted to them under Ex.A.3 belonged to D1 & D2, it is not open to the plaintiff to claim a share in the property scheduled to the plaint, which is the subject matter in O.S.No.2595 of 1981, which has reached finality by the judgment of the Honourable Apex Court in SLP.(Civil).No.10689 of 1995. Under section 29-A(v) of the Hindu Succession Act, 1956 also the suit is not maintainable since the plaintiff has accepted and acted upon Ex.A.3-partition of the year 1980 (24.2.1980). If the plaintiff’s (appellant’s) contention that under Ex.A.3 the property scheduled to the plaint was not partitioned then she ought to have filed the suit for partition of the entire property including the property scheduled to Ex.A.3. So viewed from any angle the plaintiff cannot ask for partition of her 1/3rd share in the property scheduled to the plaint in O.S.No.2595 of 1981 on the file of the IV Additional Judge, City Civil Court, Chennai. If a decree is passed in this suit then it will amount to indirectly setting aside the decree and judgment of the Honourable Apex Court in SLP.(Civil).No.10689 of 1995. Under such circumstance, I hold on point No.1 that the plaintiff in O.S.No.746 of 1996 on the file of the VIII Additional Judge, City Civil Court, Chennai, is not entitled to a decree for partition of her 1/3rd share in the plaint schedule property in lieu of section 29-A(v) of the Hindu Succession Act, and I hold on point No.2 that the suit for partial partition is not maintainable.
8.Point No.3:- In view of my discussion and findings in the earlier paragraphs I hold on point No.3 that the decree and judgment in O.S.No.746 of 1996 on the file of the VIII Additional Judge, City Civil Court, Chennai, is not liable to be set aside for the reasons stated in the memorandum of appeal.
9.In fine, the appeal is dismissed with cost of D3 confirming the decree and judgment in O.S.No.746 of 1996 on the file of the VIII Additional Judge, City Civil Court, Chennai.
07.07.2008
Index :Yes/No
Web :Yes/No
ssv
To,
The VIII Additional Judge,
City Civil Court, Chennai.
A.C.ARUMUGAPERUMAL ADITYAN, J.
ssv
A.S.No.77 of 1998
07.07.2008