JUDGMENT
P.S. Narayana, J.
1. Introductory Facts:
AS No. 624 of 1993 is filed as against the judgment and decree made in OS No. 267 of 1982, dated 11.8.1992 on the file of Principal Subordinate Judge, Narsaraopet. Transfer Appeal Suit No. 1260 of 2002 is filed as against the decree and judgment, dated 11.8.1992 made in OS No. 229 of 1984 on the file of Principal Subordinate Judge, Narsaraopet. Both these suits were disposed of by a common Judgment.
2. OS No. 267 of 1982 was filed for the relief of partition of the plaint schedule properties into 9 equal shares and allot one such share to each of the plaintiffs by passing a preliminary decree and to appoint a Receiver to take possession of the properties and manage the properties pending disposal of the suit, and in the alternative for mesne profits and for other appropriate reliefs. The said suit was filed by Parchuri Sambasiva Rao and Parchuri Gopala Rao, the then minors represented by the next friend-guardian and mother Krishna Kumari. In the said suit, the 4th defendant was added as supplemental defendant as per orders in 1A No. 1529 of 1985, dated 6.11.1985. The said Parchuri Krishna Kumari, mother of the plaintiffs in OS No. 267 of 1982, instituted yet another suit OS No. 229 of 1984 as an indigent person praying for the relief of maintenance at the rate of Rs. 300/- per month and for past maintenance at the rate of the same for three years and to grant Rs. 10,000/- for separate residence and further praying for a charge over the plaint A schedule properties in relation to the relief of maintenance and for certain other appropriate reliefs. In the light of the respective pleadings of the parties, having settled the issues, on behalf of the plaintiffs PWs. 1 to 3 were examined. Likewise on behalf of the defendants, DWs. 1 to 7 were examined, Exs.Bl to B6 and also Exs. X1 to X4 were marked. After recording findings, the learned Judge decreed the suit OS No. 267 of 1982 with costs and a preliminary decree was passed for partition of the plaint schedule properties into 9 equal shares allotting one such share to each of the plaintiffs and separate possession of the said properties as all the properties are liable for partition and further directed the enquiry into mesne profits on a separate application from the date of suit till delivery of possession. Likewise OS No. 229 of 1984 was decreed with costs granting a sum of Rs. 300/- per month towards monthly maintenance from the date of suit and a sum of Rs. 150/- per month towards past maintenance for three years preceding the filing of the suit and a sum of Rs. 7,500/- towards separate residence for the plaintiff therein and defendants 1 to 3 were directed to pay the Court fee on the plaint due to the Government.
3. As already referred to supra, aggrieved by the decree and judgment made in OS No. 267 of 1982, appeal AS No. 624 of 1993 was preferred to this Court and on the ground of pecuniary jurisdiction, the appeal as against the decree and judgment in OS No. 229 of 1984 was preferred before the District Judge, Guntur, which was transferred to this Court by virtue of an order made in Transfer CMP No. 189 of 2001, to be heard and disposed of along with AS No. 624 of 1993. Thus, both these appeals are being heard by this Court.
4. The 3rd defendant in the suit OS No. 267 of 1982, the father, died on 13.5.2002 and his daughters were brought on record as his legal representatives on 3.11.2003 and shown as appellants 5 to 7. The said appellants 5 to 7 filed ASMP No. 394 of 2007 praying this Court to receive additional written statement filed by the 6th appellant and the Memo of Adoption filed by appellants 5 to 7 adopting the said written statement. The Counsel representing the respondents opposed the said application. It is stated that the 4th defendant in OS No. 267 of 1982 also died and his legal representatives were brought on record.
Contentions of Sri N. Srirama Murthy
5. Sri Srirama Murthy, learned Counsel representing the appellants had taken this Court through the oral and documentary evidence available on record and would submit that the 1st defendant is the father of the plaintiffs and the 3rd defendant is the father of the 1st defendant. The Counsel also would maintain that since the 3rd defendant died, his legal representatives were brought on record. The Counsel also would point out that there is no conflict of interest as such relating to the stand taken on the aspect of execution of agreement of sale in question for a portion of the property and since the said alienation was made for the family necessity, the agreement of sale is binding on all the members including the plaintiffs, the sons of the 1st defendant. The Counsel also would maintain that the reasons recorded by the learned Judge while disbelieving the agreement of sale cannot be sustainable reasons since it was stated that the same was not produced along with the written statement and it was thought of at a subsequent stage. The Counsel also had pointed out that the relationship between these parties and the other evidence available on record and would contend that the agreement of sale in question is a bona fide transaction and the same to be upheld. The Counsel also pointed out to the documents ‘B’ series. While further elaborating his submissions the learned Counsel also pointed out that during the pendency of this litigation, the partition action, Section 6 of the Hindu Succession Act, 1956, hereinafter in short referred to as Act for purpose of convenience, as amended by Act 39 of 2005 came into force, and inasmuch as partition as such was not effected between the members of the family, the daughters also would become independent co-parceners and hence in the light of the provisions of Section 6 of the Act, referred to supra, the shares are to be distributed. The learned Counsel while elaborating his submissions had pointed out to the object of introducing this Amendment to Section 6 of the Act and would submit that inasmuch as the same had been aimed at in giving equal status to the daughters on par with the sons as co-parceners bringing in a revolutionary change of the old concept of co-parcenary, the same may have to be given effect to in its true spirit. The Counsel also had pointed out to the relevant Amending Legislations, similar or analogous to the present Amending Act, both in the State of Andhra Pradesh and the State of Tamil Nadu, and also placed reliance on certain decisions to show that Section 6 of the Act to be made applicable to the facts of the present case. The Counsel also would submit that this being a pure question of law and since the relationship between these parties not being in serious controversy, the same can be permitted to be raised in these appeals. The Counsel also would submit that the subsequent event to be taken notice of by this Court and in view of the same the provisions of Section 6 of the Act to be applied and accordingly a preliminary decree to be passed with the changed shares in the present partition action. However, the learned Counsel would emphasize that either appropriate directions to be given in relation to the agreement of sale in question so as to safeguard the interest of the agreement holder or atleast proper directions in relation to the adjustment of shares on the ground of equity to be made in the present partition action. The Counsel also while further elaborating his submissions would point out that in the maintenance suit, the husband would be getting a very meagre share, a small extent of land, and when the same to be taken into consideration, the maintenance amount granted being on higher side, the same to be reduced granting just and reasonable amount in this regard. The learned Counsel also placed strong reliance on certain decisions to substantiate his submissions.
Contentions of Sri Chinnapa Reddy
6. Sri Chinnapa Reddy, learned Counsel representing the legal representatives of the 4th defendant would contend that there is absolutely no conflict of interest between the agreement holder and the original owners and the sons of the 1st defendant alone are challenging the same. Even otherwise, the reasons which had been recorded by the learned Judge cannot be sustainable reasons for the reason that the 4th defendant paid Rs. 32,000/- and the agreement of sale was for legal necessity and even the 4th defendant-3rd respondent being no more, respondents 4 to 6 were brought on record as the legal representatives of the deceased-4th respondent. Hence, the Counsel would submit that inasmuch as for the sake legal necessity, the agreement of sale was executed by the members of the family, the interest of the agreement holder to be safeguarded. The Counsel in elaboration pointed out about the close relationship between the agreement holder and the family members.
Contentions of Sri Movva Chandrasekhar Rao
7. Sri Movva Chandrasekhar Rao, learned Counsel representing the contesting respondents, the sons in the partition action and the mother in the maintenance action made the following submissions:
The Counsel would maintain that it is not as though this agricultural family is a small family and as can be seen from the extent of the land shown in the plaint schedule, the family owns sufficient substantial properties and it is unfortunate that the 1st defendant has been at logger heads with his wife and intends to defeat the rights of the children, and that is the reason why they are left with no other option except to thought of this litigation. The Counsel also would maintain that the way in which the agreement of sale was brought into existence and how the same was not produced with written statement and the nature of paper and several of the suspicious circumstances relating to the same had been recorded in elaboration by the learned Judge and hence the said agreement of sale to be disbelieved and the said findings not to be disturbed. The Counsel also would submit that when the partition action was decreed, the rights of the parties normally to be worked out as on the date of the institution of the suit and unless the changed shares are not in controversy between the parties, normally such changed shares not to be introduced in the preliminary decree. Hence, the learned Counsel would contend that as declared by the preliminary decree already, 1/9th share to each of the plaintiffs is to be confirmed as such. While further elaborating his submissions the Counsel would maintain that Section 6 of the Act no doubt came into force, but whether the same is applicable to the pending actions or whether the said provision would have retrospective operation or not, these questions had not been decided. When that being so, the non-parties to the litigation for the first time on the ground of subsequent events cannot put forth such a plea without factual foundation in the respective pleadings of the parties. The Counsel also would submit that the daughters came on record as legal representatives and not in their independent capacity and hence as legal representatives of the 3rd defendant, the parties cannot be permitted to put forth any further or additional plea and hence in this view of the matter the application filed for reception of additional written statement also cannot be allowed at this stage. Hence, the Counsel would maintain that this is not a fit case where the parties to be permitted to take such plea by way of additional written statement at the appellate stage and by permitting the same, the learned Counsel would maintain that the rights of the sons of the 1st defendant would be seriously prejudiced since their shares would be substantially reduced and at any rate this is not the object of Section 6 of the Act and hence such pleas not to be permitted before the appellate Court. The learned Counsel also placed reliance on certain decisions to substantiate his submissions.
8. Heard the learned Counsel on record, perused the oral and documentary evidence available on record and also the findings recorded by the learned Judge.
9. Before taking up further discussion on the points for consideration which may emerge in the light of the rival contentions advanced by the parties at the first instance, it may be appropriate to have a look at the respective pleadings of the parties.
Pleadings of the Parties
10. The plaintiffs in OS No. 267 of 1982 pleaded as hereunder:
The defendants 1 and 2 are brothers. 3rd defendant is the father. Defendants 1 to 3 are the members of the Hindu Joint family owning the schedule mentioned properties. The landed property shown in the ‘A’ schedule is right and fertile yielding a net income of Rs. 40,000/- per year. The family is in affluent condition and have no liabilities. The plaintiffs 1 and 2 are the sons of the first defendant. The defendants 1 and 2 in fact do not attend to the family affairs and do not manage the family property. They have walked into the taps of bad society and thus indulged in bad walks of life. The first defendant started ill-treating the plaintiffs mother since more than six years and many a time she was beaten and necked out. Elders and persons interested in the family have tried their level best to check the conduct of the 1st defendant, but in vain. Ultimately since one and half years back, the 1st defendant stripped off her gold ornaments and driven out the plaintiffs and their mother with the dress on person mercilessly and helpless as they were sought shelter with the parents of the plaintiffs mother at Chadalavada of Tenali Taluk. Elders and relations negotiated atleast for the maintenance of the minor children and their mother. It was also turned down. The 2nd defendant is no better than the 1st defendant and he also discarded his wife and children. The 3rd defendant is not helpful in any manner to the plaintiffs. Since the controlling level of the family is being operated by his wife, the plaintiffs are forced to be away from the family, deprived of the benefits of the income of the joint family atleast for the income. Defendants 1 and 2 are spent thrifts and have been wasting the family property and the income therefrom. The request for partition of the family properties was also advised on behalf of the minor plaintiffs. The defendants did not respond and on the other hand, it is learnt that the defendants are trying to secreted the properties to the disadvantage of the minor plaintiffs. Under the circumstances, it is no longer safe for the plaintiffs to continue as the members of the joint family with the members of the defendants 1 to 3. Hence the suit.
Averments made in the Written Statement of the 1st Defendant
Defendants denied all the allegations of the plaint averments. It is further submitted that the family of the 1st defendant is an agriculturists family owning properties as per the ‘A’ schedule. The defendants 1 and 2 have three sisters by name (1) Korrapati Siva Parvathi, (2) Mulpuri Siva Kumari and (3) Sakhamuri Siva Gowri and they married in the years 1975, 1977 and 1982 respectively. According to the custom in the Kamma community to which the parties belonged to, especially in Guntur District and Krishna District, they were given by the parental family landed property towards their ‘pasupu kumkuma’ at the time of their respective marriages. Ac.2-50 cents of land in item No. 4 out of D. Nos. 40-A and 41-0 was announced as gift to Siva Parvathi at the time of her marriage. Ac. 2-41 cents of land being the western portion in Ac.3-22 cents in D. No. 41-c which is part of item No. 4 was gifted to second daughter Siva Kumari towards ‘pasupu kumkuma’. Her husband’s family wanted something in writing and hence, an agreement on a stamped paper dated 16.5.1977 was executed promising to execute a regular deed later. At the instance of the people of Siva Parvathi, another agreement in her favour dated 1.1.1978 was executed with regard to Ac.1-60 cents in D. No. 40/2A being the western plot and Ac.0-81 cents being the eastern plot in D. No. 41/C. Ac.2-42 cents was gifted to the 3rd daughter Siva Gowri being the eastern portion of Ac.4-02 cents covered by D. No. 40/2-A which is part of item No. 4 of the A schedule and a similar agreement dated 10.9.1982 was executed. Thus, the family of the defendants owned their rest of the property only in the said item No. 4. The defendants family being an agriculturist family, faced adverse circumstances due to cyclone in 1977 and 1979 and incurred debts to the extent of Rs. 50,000/-. In discharge of the pressing debts of Rs. 32,000/-, they sold 4 acres of land in Ac. 6-70 cents covered by D. No. 144/D of item No. 5 of the A-schedule in favour of Mulpuri Ramaiah, adopted son of Venkaiah of Ravela. Thus, the family is entitled to only to the balance of the immovable property as per A-schedule. The family still owes debts to three persons i.e., Rs. 4,000/- to Bollapalli Uma Maheswara Rao, Rs. 9,000/- to Abburi Venkata Rao borrowed in the year 1981 and Rs. 5,000/- to Mekala Rama Rao borrowed in the year 1982. The wife of the first defendant left the family house about one year ago. She was always insisting that her husband should separate from the family, sell away the lands and shift to her native place Chadalavada. She was not able to get on with the rest of the family members and was jealous of the gifts of the daughters in the family of the defendants though she, herself got two acres from her parents. For the same reason, she went away to her parental place and was encouraged by unknown people that as she had two sons, she could ask for their share being allotted to their shares and live away comfortably from the husband. The 2nd defendant’s wife was also given Ac.2-00 of land as gift in Kannavaripalem. About an year ago, she went to her paternal place for confinement and delivered a child. In the 5th month, she came back to the defendants house, stayed for a few days and went back to her native place. At that time, the 2nd defendant suggested that 2 acres of land given to her might be sold and that the profits on them from the last five years @ Rs. 1,500/- per year collected by her parents might be brought back, so that with that amount they could purchase some of the property given to the sisters of defendants 1 and 2, as they were inclined to take cash and purchase properties in the villages in which they were married. She did not agree to that and continued to stay in the native place encouraged by the attitude of the plaintiffs mother and making a common cause with her. Thus, it is not in the interest of the minors to partition the family properties and allot them their specific shares. The family of the defendants has no outstandings to the tune of Rs. 20,000/-or any amount. There is no gold much less 30 sovereigns of gold belonging to the joint family. The wives of defendants 1 and 2 have some small jewels which are with them. There is no gold of the joint family property partible between the members. The paddy in the house was only 6 to 7 bags as noted by the Commissioner. Hence, the suit is liable to be dismissed with costs.
Averments made in the Written Statement of the 4th Defendant
This defendant is interested in item No. 5 of the suit schedule property. The defendants 1 to 3 agreed to sell the same to this defendant for Rs. 32,000/- and executed a contract of sale deed 29.3.1982 for discharge of debts due to this defendant and others. Major portion of consideration was paid and possession of the property was given to the defendants. The said sale is for legal necessity. The defendant’s sister making enquiries and being satisfied, purchased the property. The defendants are binding on the plaintiff. The defendant is entitled in equities. In any event, the property purchased by him which is 4 acres out of 6 acres 76 cents which is shown as item No. 5 of the suit schedule. The defendant also spent huge amount for improving the lands. He is entitled to equities. Hence, the suit is liable to be dismissed with costs.
11. Likewise in OS No. 229 of 1984, the suit filed as indigent person by the wife, she had pleaded as hereunder:
The defendants 1 and 2 are brothers, whereas the 3rd defendant is father. Defendants 1 to 3 are the members of undivided Hindu joint family, owning the A schedule property. The landed property described in the A schedule is rich and fertile and fit for raising commercial crops, such as cotton, chillies and tobacco. In fact the defendants are raising cotton crop and they are getting net income of more than Rs. 50,000/- a year. The family is efficient condition and there are neither dependants to be maintained nor there are liabilities to be answered. The 1st defendant married the plaintiff some fifteen years ago and lead the marital life with the plaintiff for a period of eight years and they are blessed with two sons by name Srinivasa Rao, aged 12 years and Gopala Rao, aged 9 years. The 1st defendant started ill-treating the plaintiff and often used to beat the plaintiff. The plaintiff endured the ill-treatment and torture in the interest of the family and children. There is none in the family to check the conduct of the 1st defendant. Elders intervention also did not bring about any fruitful result. Ultimately some three and half years back, in summer session, the defendants beat the plaintiff mercilessly, stripped of her gold ornaments-Nanuthadu and ear-rings presented by her parents of the value of four sovereigns and driven out the plaintiff and her children. The plaintiffs parents presented several household articles and also money to the tune of Rs. 15,000/- at the time of the marriage. Being helpless, as she was in the said circumstances, sought shelter with her parents at Chadalavada of Tenali taluq. The first defendant as well as the 2nd defendant have developed abnormal conduct due to bad association. Elders and relations mediated with the defendants for the maintenance for the plaintiff and the same was turned down. The 2nd defendant also had discarded his wife and children and ill-treated woman is living with her parents along with her children. The 3rd defendant has no voice and say in the family. Defendants 1 to 3 when failed to respond with request of the elders for providing maintenance to the plaintiff and children, the elders advised the plaintiff to seek recourse to law. Under the above circumstances OS No. 267 of 1982 was filed for partition on behalf of the two minor children against the defendants 1 to 3 and the same is pending in this Court. In the said suit IA 2643/1982 was also filed for the relief of interim injunction restraining the defendants from alienating the properties and the same was ordered on 6.11.1982 and subsequently the injunction was made absolute. In spite of the injunction order, the defendants created false documents in the shape of agreements in favour of the daughter of the 3rd defendant and secreted the property. The said documents are collusive and got up and in no way bind either this plaintiff or the plaintiffs in OS No. 267/1982. The A schedule properties are still and till this date are in possession and enjoyment of the defendants and the defendants are enjoying the income therefrom. From the above mentioned facts, it is clear that the conduct of the defendants 1 to 3 is victimful and in pursuance the 1st defendant is guilty of marital obligation and also neglecting the plaintiff and minor children. The 1st defendant is liable to answer the plaintiffs claim for maintenance. As the defendants 1 to 3 are members of undivided Hindu Joint family, the defendants 2 and 3 are also made parties to the suit. The plaintiff and defendants belongs to Kamma community and as per the traditions of the community and the family status of defendants 1 to 3, in particular are not in the habit of attending to field work. The family of the defendants 1 to 3 is in efficient condition and there are considerable lands in the village. They get the work done by collies and servants. The prices of essential commodities and clothings have gone up and the plaintiff requires a sum of Rs. 300/- per month and also Rs. 10,000/- for separate residence. The quantum of maintenance claimed by the plaintiff is consistent with the status of the family as well as the price line for essential commodities. The family of the defendants is not burdened with any liabilities and there are none to be maintained. The plaintiff claiming the maintenance at the same rate for past maintenance. The plaintiff has no source of income of any kind and has no property. She has alienated any properties within the prescribed time. She is an indigent person. Hence the suit.
12. In the written statement filed by the husband as 1st defendant, it was pleaded as hereunder:
The allegations made in OS No. 229 of 1984 are not true and the suit is not maintainable in law. The defendants denied the plaint averments. The allegations made in the written statement filed in OS No. 267 of 1982 may be read as part of this written statement and prayed to dismiss the suit with costs.
Issues settled by the Court of first instance
13. On the respective pleadings of the parties in OS No. 267 of 1982, the following issues were settled:
1. Whether the plaintiff is entitled to question the alienations or gifts given to daughters at the time of marriage?
2. Whether there are any debts and if so, are they paid to joint family?
3. What are the properties liable for partition?
4. Whether plaintiff is entitled to partition?
5. To what relief?
Additional issue:
1. Whether the alienations in favour of D4 is true, valid and binding and to what equities if any D4 entitled?
14. In OS No. 229 of 1984, the suit filed for maintenance by the wife, the following issues were settled:
1. Whether the plaintiff is entitled for the maintenance at the rate of Rs. 300/- p.m.?
2. Whether the plaintiff is entitled for the past maintenance at the rate of Rs. 300/- p.m. for three years?
3. Whether the plaintiff is entitled for a sum of Rs. 10,000/- towards separate residence?
4. Whether the plaintiff is entitled for a charge over the plaint A schedule properties?
5. To what relief?
15. On behalf of the plaintiffs, PWs. 1 to 3 and on behalf of the defendants DWs. 1 to 7 were examined and Exs. X1 to X4 and Exs.Bl to 6 were marked.
Findings recorded by the learned Judge in Nutshell
16. The learned Judge while answering issue No. 1 in OS No. 267 of 1982, came to the conclusion that since the documents in favour of the sisters were not filed, it cannot be held that the lands for the extents specified in relation thereto were given to the sisters of the defendants. The learned Judge also disbelieved
Exs. X1 to X4 and recorded a positive finding and further held that there are no gifts given to the daughters and answered the issue in favour of the plaintiffs in the suit for partition. While answering issue No. 2 and additional issue in partition action it was held that the alienation under
Ex. B1 is sham, nominal and created for the purpose of the suit. Further, while answering issues 3 and 4 in partition action, elaborate findings had been recorded and since the alienations were not proved, all the properties are liable for partition and the plaintiffs are entitled to their respective shares. Likewise, in the suit for maintenance, the evidence was appreciated in detail and ultimately the findings had been recorded positively in favour of the plaintiffs and the suit was partly decreed as specified above. Questioning the same, these two appeals had been preferred.
17. This Court is framing the following common points since not only the parties are closely related but also both these appeals arise out of partition action and maintenance action, a common judgment:
1. Whether the findings recorded by the learned Judge in relation to Ex. B1, the agreement of sale, to be confirmed or to be disturbed in the facts and circumstances of the case?
2. Whether the findings recorded by the learned Judge in relation to Exs. X1 to X4 to be confirmed or to be disturbed in the facts and circumstances of the case?
3. Whether the findings recorded by the learned Judge in relation to the respective shares of the parties to be confirmed or to be disturbed in any way?
4. Whether the application filed for reception of additional written statement ASMP No. 394 of 2007 to be allowed or to be dismissed in the facts and circumstances of the case?
5. If so, whether by virtue of Section 6 of the Act as substituted by Act 39 of 2005 would alter the shares of the respective parties?
6. Whether the findings recorded relating to maintenance in OS No. 229 of 1984 to be confirmed or to be disturbed in the facts and circumstances of the case?
7. If so, to what relief the parties would be entitled to?
Points 1 and 2:
18. The evidence available on record is that of PW.l, the then next friend of the plaintiffs in OS No. 267 of 1982 and the plaintiff in OS No. 229 of 1984, PWs.2 and3, whereas 1st defendant examined himself as DW.l and further DWs.2 to 7 also had been examined and Exs. X1 to X4 and Exs.Bl to B6 had been relied upon.
19. It is no doubt true that a stand had been taken that an extent of about more than 2 acres of land had been given towards Pasupu Kumkuma. The three sisters were married even in the years 1975, 1977 and 1982 and the same was given in accordance with the caste custom prevailing in Kamma community. The details relating to the marriages and the lands which had been given, no doubt had been elaborated and it is not in serious controversy that no registered document as such had been executed in this regard and in the light of the same, the reasons which had been recorded in detail by the learned Judge need not be repeated again and further need no disturbance at the hands of this Court. Even otherwise, on appreciation of evidence, the learned Judge disbelieved this stand taken that these daughters were given certain extents towards Pasupu Kumkuma. Hence, this Court is not inclined to disturb those findings.
20. The evidence of PWs. 1 and 2 is available on record apart from the evidence of PW.3. Ex. X1 is the promissory note executed by DW.7 dated 15.7.1981. As can be seen from Exs. X1 to X4, all the endorsements appear to have been written with one ink and one pen and these are fresh even to the naked eye. The learned Judge recorded further reasons in relation to Exs. X1 to X4 and also appreciated the evidence of DWs. 1 to 7 and recorded proper findings in this regard. Hence, the said findings cannot be found fault with.
21. Elaborate submissions were made in relation to Ex. B1 by the Counsel on record. Ex. B1 is the agreement of sale said to have been executed by defendants 1 to 3 in favour of 4th defendant for Rs. 32,000/-. No doubt some evidence was placed on record to show that Ex. B1 is a bona fide transaction and the evidence of DW.l in particular had been relied upon, who deposed about the debts of the family and how the family was affected by cyclone and several other aspects. The specific stand taken by the plaintiffs in the partition action is that Ex. B1 was brought into existence only with a view to deprive them of their due share. DW.2 is Viyyanka of 3rd defendant. DW.2 no doubt deposed to the effect that the 1st defendant had no vices and borrowing of the amounts to be taken as amounts borrowed for the sake of family necessity. DW.4 is the 4th defendant, who had also deposed on similar lines. DW5 deposed that the defendants sold the lands to DW.4 under Ex. B1. DWs.5 and 6 surprisingly had deposed that they do not know whether Exs.Bl to B6 are fresh and they are created for the purpose of the litigation. DW.7 is the scribe of Ex.B4 endorsement. This evidence of DWs. 1 to 7 had been discussed at length by the learned Judge and also the relationship of certain of these witnesses had been dealt with at length and ultimately the learned Judge came to the conclusion that only with a view deprive the children of the 1st defendant to have their legitimate shares, this document Ex. B1 was brought into existence and the same is a nominal and sham document. It is needless to say that the self-same witnesses also had deposed in relation to maintenance claim as well. On a careful scrutiny of the oral evidence of DWs. 1 to 7 and also PWs. 1 to 3 and also Exs. X1 to X4 and Exs.Bl to B6, this Court is of the considered opinion that the findings recorded by the learned Judge are based on proper appreciation of evidence and hence the said findings cannot be found fault with by this Court and accordingly the said findings are hereby confirmed.
Points 3, 4 and 5:
22. Points 3, 4 and 5 to be discussed together for the purpose of convenience.
23. The main question in controversy now is that by virtue of operation of Section 6 as substituted by Act 39 of 2005 of the Act, the shares of the plaintiffs in the partition action also to be changed.
24. It is no doubt true that normally the rights of the parties to be decided as crystallized as on the date of the institution of the suit and this is not an universal rule but having certain exceptions. It is no doubt true that the findings recorded by the learned Judge relating to the shares having disbelieved Ex. B1 cannot be in any way found fault with. However, in the light of the subsequent events, the subsequent Amending Legislation referred to supra, whether the changed shares as per law to be granted by passing an appropriate preliminary decree or the shares which had been granted by a preliminary decree by the Court of first instance, as such to be confirmed by this Court, would be the serious question in controversy.
25. Section 6 of the Act dealing with Devolution of interest in coparcenary property as substituted by Act 39 of 2005 reads as hereunder:
Devolution of interest in coparcenerary property:-(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,-
(a) by birth become a coparcener in her own right in the same manner as the son;
(b) have the same rights in the coparcenary property as she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son,
and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:
Provided that nothing contained in this Sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.
(2) Any property to which a female Hindu becomes entitled by virtue of Sub-section (1) 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 in, as property capable of being disposed of by her by testamentary disposition.
(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,-
(a) the daughter is allotted the same share as is allotted to a son;
(b) the share of the predeceased son or a predeceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child or such predeceased son or of such predeceased daughter; and
(c) the share of the predeceased child of a predeceased son or of a predeceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such predeceased child of the predeceased son or a predeceased daughter, as the case may be.
(4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no Court shall recognize any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grand father or great-grand father solely on the ground of the pious obligation under the Hindu Law, of such son, grand son or great-grand son to discharge any such debt:
Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005, nothing contained in the Sub-section shall affect-
(a) the right of any creditor to proceed against the son, grand son or great-grand son, as the case may be; or
(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.
(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004.
26. It is true that the daughters who came on record as legal representatives of the deceased-3rd defendant cannot put forth any additional plea other than what had been put forth by the original defendant. It is also true that always such parties who were brought on record as legal representatives not to be equated with the original parties. It is also true that the daughters for the first time now are coming up with a plea that they are also entitled to their respective shares by moving an application ASMP No. 394 of 2002 praying for permission to file additional written statement on the strength of the amended provisions of Section 6 of the Act specified supra. Strong reliance was placed on the decision reported in M/s. Bay Berry Apartments Pvt. Ltd. and Anr. v. Shobha and Ors. 2007 (1) CCC 189 (SC), wherein the Apex Court at paragraph 35 emphasized of taking note of the subsequent events. Reliance was also placed on the decision reported in New Okhla Industrial Development Authority v. Pooran Singh and Ors. etc. , to substantiate the stand that the legal representatives are not expected to put forth any additional pleas or new pleas other than those which had been put forth by the original defendant to the suit.
27. It is true that in a case of this nature when the parties already are on record, no doubt in a different capacity as legal representatives, the question would be whether such parties to be permitted to take the additional plea, substantially a legal plea relating to the applicability of Section 6 of the Act as substituted by Amending Act 39 of 2005 or such permission not to be granted on the ground that they being only legal representatives, they cannot be permitted to put forth such plea though it is a subsequent event since such plea was not available to the 3rd defendant at the relevant point of time. It is needless to say that Section 6 of the Act was substituted by the Amending Act 39 of 2005, which is a subsequent event, and the 3rd defendant had no occasion or opportunity of taking such a plea, for the reason that the Amending Legislation was not in existence as on the said date. Hence, if the parties are deprived to put forth such legal plea, based on the subsequent Amending Legislation, it would cause serious prejudice to such parties, and if such plea is permitted, there cannot be any doubt or controversy that the preliminary decree to be modified and the shares are to be changed accordingly. When such serious impact is there on the rights of the parties to be worked out, on the just ground that they are on record in the capacity of legal representatives and not as original parties to deprive such parties in putting forth such plea, in the considered opinion of this Court, would not be just and proper. Hence, in the light of the averments made in the affidavit filed in support of the application in ASMP No. 394 of 2007, the said application is hereby ordered and the additional written statement filed by 6th appellant is hereby received. The said legal representatives to be taken as having been brought on record not only as legal representatives of deceased, 3rd defendant, but also as parties to the suit in their independent capacity as well as in the light of the language of Order 1 Rule 10(2) of the Code of Civil Procedure “The Court may at any stage of the proceedings either upon or without the application of either party”.
28. The next question to be decided is in the light of the language employed in Section 6 of the Act, as substituted by the Amending Act 39 of 2005, whether adducing of any further evidence would be necessary or inasmuch as this is a pure question of law, the changed shares to be decided and a preliminary decree to be passed accordingly by this Court without making any further order of remand.
29. The learned Counsel representing the appellants had placed strong reliance on the decision reported in S. Sai Reddy v. S. Narayana Reddy and Ors. , wherein the Apex Court while dealing with Section 29-A of the Hindu Succession (A.P. Amendment) Act, 1986 held as hereunder:
A partition of the Joint Hindu family can be effected by various modes, viz., by a family settlement, by a registered instrument of partition, by oral arrangement by the parties, or by a decree of the Court. When a suit for partition is filed in a Court, a preliminary decree is passed determining shares of the members of the family. The final decree follows, thereafter, allotting specific properties and directing the partition of the immovable properties by metes and bounds. Unless and until the final decree is passed and the allottees of the shares are put in possession of the respective property, the partition is not complete. The preliminary decree which determines shares does not bring about the final partition. For, pending the final decree the shares themselves are liable to be varied on account of the intervening events and the preliminary decree does not bring about any irreversible situation. The concept of partition that the legislature has in mind cannot be equated with a mere severance of the status of the joint family which can be effected by an expression of a mere desire by a family member to do so. The partition that the Legislature has in mind is a partition completed in all respects and which has brought about an irreversible situation. Unless a partition of the property is effected by metes and bounds, the daughters cannot be deprived of the benefits conferred by the Act. Since the legislation is beneficial and placed on the statute book with the avowed object of benefiting women who are a vulnerable section of the society in all its stratas, it is necessary to give a liberal effect to it.
Since in the present case the final decree had not been passed and the property had not been divided by metes and bounds, Clause (iv) to Section 29-A was not attracted and the respondent-daughters were entitled to their share in the family property.
Thus, the decision in S. Narayana Reddy v. S. Sai Reddy , was affirmed by the Apex Court.
30. Further strong reliance was placed on the decision of the Division Bench of Madras High Court in M. Shanmugha Udayar v. Sivanandam and Ors. AIR 1994 Mad. 123, whereunder the Division Bench while dealing with Section 29-A of the Hindu Succession Act, as amended by Tamil Nadu Amending Act, 1990 observed at paragraph 34 as hereunder:
The next question we have to address ourselves is the share to which the 10th defendant is entitled. Section 29(A) of the Hindu Succession Act introduced by T.N. Amending Act 1 of 1990 reads as follows:
Notwithstanding anything contained in Section 6 of this Act,-
(i) in a Joint Hindu Family governed by Mitakshara Law, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as a son and have the same rights in the coparcenary property as she would have if she had been a son, inclusive of the right to claim by survivorship 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 allottable to a son provided that the share which a predeceased son or a predeceased daughter would have got at the partition if he or she had been alive at the time of the partition shall be allotted in the surviving child of such predeceased son or of such predeceased daughter:
Provided further the share allottable to the predeceased child of a predeceased son or of a predeceased daughter, if such child had been alive at the time of the partition, shall be allotted to the child of such predeceased child of the predeceased son or of the predeceased 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 commencement of the Hindu Succession (Tamil Nadu Amendment) Act, 1989.
On the strength of this newly introduced provision of law, learned Counsel for the appellant argued that the 10th defendant his daughter has become a coparcener in her own right in the same manner as his sons and she has the same right in the joint family properties. Hence she also has to be allotted a share along with plaintiffs and defendants 2 to 7. The objections on behalf of the respondents are that the said daughter of the 9th defendant has not preferred any appeal and in any event this plea has not been taken by the appellant in his appeal memorandum. Since the plea of the daughter to come on record as the 10th defendant has been negatived by the trial Court holding that she is not a necessary party to the suit, evidently she could not have preferred any appeal. Now we have permitted her to come on record. So there cannot be any objection for the 10th defendant to raise this plea in this appeal. Further as a Division Bench of Calcutta High Court has laid down in Nuri Mian v. Ambica Singh AIR 1919 Cal. 716, when a question of law is raised for the first time in a Court of last resort upon the construction of a document or upon facts either admitted or proved beyond controversy, it is not only competent but expedient, in the interest of justice, to entertain the plea. Ordinarily the decree in a suit should accord with the rights of the parties as they stand at the date of its institution. But this principle is not of universal application. Where it is shown that the original relief claimed has, by reason of subsequent change of circumstances, become inappropriate or that it is necessary, to base the decision of the Court on the later circumstances in order to shorten litigation or to do complete justice between the parties, it is incumbent upon a Court of justice to take notice of events which have happened since the institution of the suit and to mould its decree according to the circumstances as they stand at the time the decree is made. And the Apex Court has laid down in Phool Chand v. Gopal Lal , that so far as partition suits are concerned, if an event happens after the preliminary decree and before a final decree is passed, and a change in the shares is necessitated, the trial Court can and should pass a second preliminary decree correcting the shares; and, if there is a dispute in that behalf the order of the Court deciding that dispute and making a variation in shares specified in the preliminary decree already passed is a decree in itself which would be liable to appeal. A partition suit is not finally disposed of till the final decree is passed and the Court has jurisdiction to decide all disputes, that may arise due to the death of some of the parties after the preliminary decree and before the passing of the final decree. There is nothing in the Civil Procedure Code which prohibits the passing of more than one preliminary decree in a partition suit, if circumstances justify it and if it is convenient and advantageous to do so. So there cannot be any impediment in passing another preliminary decree correcting the shares in case we find the 10th defendant also has to be allotted a share in the division of family assets.
31. Submissions at length were made relating to the applicability or otherwise of the Amending Act, Act 39 of 2005, and Section 6 of the Act as substituted by the said Amending Act. It is true that certain conditions are to be satisfied for applicability of the said amended provision. However, on a careful analysis of the facts of the case, the applicability of the provisions of Section 6 of the Act referred to supra, appears to be very near to declare the modified shares in the light of the said provision. Inasmuch as on the strength of a subsequent amending legislation, a new plea is being put forth by putting an additional plea before this Court which had been received and also taking into consideration that by virtue of these changed shares, the shares of plaintiffs would be substantially changed or reduced, this Court is of the considered opinion that the following additional issue to be framed and parties to be given an opportunity to adduce evidence in relation thereto and record appropriate findings:
Whether the parties would be entitled to the altered or changed shares which would be different from the preliminary decree already granted by the Court of first instance in the facts and circumstances, in the light of Section 6 of Hindu Succession Act, 1956, as substituted by the amending Act, Act 39 of 2005?
32. In the light of the foregoing reasons and for the said purpose this Court is of the considered opinion that the matter to be remanded in the peculiar facts and circumstances.
Point No. 6:
33. The same evidence had been appreciated even in relation to the maintenance claim and even if the evidence to be carefully analyzed, this Court is satisfied that taking into consideration the status of the family and the extents of the agricultural land owned by the family, it cannot be said that any higher or exorbitant amount had been fixed while awarding maintenance and the other ancillary reliefs. Hence, the said findings need not be disturbed and accordingly the decree and judgment made in OS No. 229 of 1984 are hereby confirmed.
Point No. 7:
34. In the light of the findings recorded above and also in the light of the additional issue, which had been framed by this Court, the decree and judgment made in OS No. 267 of 1982 are hereby set aside and the matter is remanded. The learned Judge to give opportunity to both parties to let in evidence on the additional issue framed by this Court and decide the matter afresh in accordance with law. Inasmuch as an order of remand is being made for answering additional issue and also in view of the fact that the partition action is an old one, it is needless to say that the learned Judge to give top priority to the suit OS No. 267 of 1982 and dispose of the same in accordance with law at the earliest possible time. AS No. 624 of 1993 is allowed to the extent indicated above.
35. As far as the decree and judgment in OS No. 229 of 1984 are concerned the same are hereby confirmed and the Transfer A.S. No. 1260 of 2002 is hereby dismissed.
36. The parties to the litigation being close relatives, both parties are directed to bear their respective costs.
