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NON-REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5053    OF 2009 [Arising out of SLP(C) No.4677 of 2008]

R. Mahalakshmi   ....Appellant Versus

A.V. Anantharaman & Ors. ....Respondents

J U D G M E N T

Deepak Verma, J.

1. Leave granted. 2. Appellant,  feeling  aggrieved  by  the  judgment  and  decree  passed  by  the  High  Court  of  Judicature  at  Madras  in  S.A  No.1168  of  2007,  decided  on  1.11.2007,  arising from the judgment and decree passed in A.S. No.39  of  2006  on  the  file  of  the  Principal  District  Judge,  Chengalpattu on 20.11.2006, whereby and whereunder the  judgment  and  decree  passed  by  Additional  Sub-Judge,  Chengalpattu in O.S.No.666 of 2001 decided on 27.7.2004  has been confirmed, is before us, challenging the same on  variety of grounds. 3.       Certain facts not in dispute are as under :

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The appellant is real sister of respondents,  being  son and daughters of late Sh. A.V. Venkataraman,  who died in the year 1961 intestate.  His wife Rathna,  mother of the parties also died on 15.3.1996 intestate. 4. It has also not been  disputed before us that  family partition  had taken place between the father of  the  present  parties  and  his  respective  brothers  on  27.4.1954,  which  was  duly  registered  before  the  Sub- Registrar. In the said partition, apart from the suit  property,  father  and  mother  of  parties  were  allotted  plots No.2 and 3 shown in greater details in the deed of  partition. 5. Since there arose dispute between the parties  with regard to ancestral property left behind by late  A.V. Venkataraman, the appellant was constrained  to send  a legal notice to the respondents on 8.6.1998 claiming  partition and separate possession to the extent of 1/5th  

share.  Respondent No.1 suitably replied to the same.  Since  the  dispute  could  not  be  resolved,  even  after  exchange  of notices, respondent No.1 as plaintiff, filed  a suit in the court of Addl. Sub-Judge  at Chengalpattu  registered as O.S.No.666 of 2001 claiming the following  decree :

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“a) passing a preliminary decree for partition of  plaintiff’s 6/20 share in the suit property, to  appoint  an  advocate  commissioner  to  divide  the  suit  properties  by  metes  and  bounds  to  pass  a  final decree and while passing preliminary decree  and final decree and deliver separate possession  of the suit property. b)  For  such  other  relief  or  reliefs  as  this  Hon’ble court may deem fit in the circumstances  of the case.”

6.   Respondent  Nos.2,  3  and  4  herein,   arrayed  as  defendant Nos.1, 2 and 3 in the said suit filed their  respective  written  statement  as  one  set  denying   the  contentions  raised by the plaintiff.     7.   The present appellant who was arrayed as defendant  No.4 in the suit, filed  the written statement denying  the  allegations  made  by  the  plaintiff  respondent  No.1  herein and further submitted as under : 8.    That  some of the neighbours  like Mr. Ranganathan  and Mr. Murugan, Dhanammal have encroached upon the land  and,  therefore,  the  plaintiff  should  also  seek  their  eviction.  She further submitted that suit is bad for  partial partition as plaintiff has not included  other  properties of her father and mother, that is  -  1)  plot  No.3 of 185 Adyarthankal  in father’s name  2)   plot

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No.2 of 195 Adyarthankal in the mother’s name  and  3)  Death cum service benefits of father. 9.    Apart  from  this,  the  appellant  herein  further  averred that she has  spent considerable amount of money,  material  and  labour  for  the  protection,  upkeep  and  improvements of the suit property and, therefore, she is  entitled to be reimbursed to that extent. 10.    On the strength of the pleadings of the aforesaid  parties, the Trial Court framed the following issues :

“1) Is the plaintiff eligible for a share  of   6/20?

2) A  share  of  6/20  to  Defendant  2,  and  1/20 share to 1st and 3rd defendant are  eligible?

3) Is the 4th Defendant as claimed in the  counter eligible for 36/90 share?

4)  Is  the  partition  affected  by  the   encroachments referred by the 4th Defendant  and also other items of the properties?

5) Cost award to the Plaintiff?

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6) In this suit the Plaintiff filed P1 to  P5 documents.  4th Defendant filed D1 to D  17  documents.

7) Issues addressed : 1 to 4.”

11. To prove the case, plaintiff has examined himself as  P.W.1  and marked documents  Ex.P-1 to P-5 while the  present appellant  arrayed as defendant  No.4 examined  herself and marked documents Ex.D-1 to D-17. 12. After appreciation of evidence available on record,  the suit of respondent No.1-plaintiff was decreed in the  following  terms :

“Finally,  Plaintiff,  2nd Defendant,  4th  Defendant  each  to  6/20  share  in  the  suit  property and 1st and 3rd Defendants each 1/20  share in the suit property is the preliminary  decree, is decided and delivered.  Plaintiff  and  the  Defendants  relationships  being  considered, also the nature of the case being  kept  in  mind,  their  costs  must  be  borne  by  themselves only it is ordered.”

13.   Feeling aggrieved and dissatisfied with the said  judgment  and  decree  passed  by  trial  court,  appellant  herein  was  constrained  to  file  appeal  before  the  Principal District Judge at Chengalpattu.  Grounds urged

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in  her  written  statement  before  the  trial  court  were  attacked and hammered in the Appeal. 14. Following  two  questions   were  formulated  by  the  first Appellate Court :   

“1) Whether the suit is bad for partial partition?  2) Whether the decree and judgment of the trial  

court is to be confirmed or not?”

15.    First Appellate Court was of the view that since  appellant herein had failed to mention anything in her  legal notice with regard to other properties said to have  been  owned  and  possessed  by  her  late  father  A.V.  Venkataraman and mother, she is not entitled to put forth  a new case contrary to the documents available on record.  Accordingly,  the  first  Appellate  Court  came  to  the  conclusion  that  suit  would  not  be  bad  for  partial  partition. 16. As regards point No.2,  it came to the conclusion  that since relationship between the parties has not been  disputed and that defendant No.2 remains unmarried and  4th defendant  (appellant) got married subsequent to the  year 1989 as such they will be entitled to receive their

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respective share in accordance with law but not as has  been claimed by the appellant.    17. The  first  appellate  court  further  noted  that  appellant  has  not  led  any  evidence  as  to  how  she  is  entitled to 36/90th share and how she has worked out the  said figure.  Thus, the judgment and decree passed by  the trial court came to be  affirmed. 18. Appellant,  still  feeling  aggrieved  by  the  said  judgment and decree, filed  Second Appeal, in the High  Court which also came to be dismissed. 19. According  to  appellant,  the  following  substantial  questions  of  law  arose  in  her  appeal,  which  are  reproduced herein below:

“a) Whether the courts below were correct  in  finding  that  the  plaintiff  is  entitled  to  6/20th share  in  the  suit  property?

b) Whether  the  suit  is  bad  for  partial  partition?

c) Whether the suit is bad for non-payment  of court fees on the value of share of  the plaintiff in the suit properties?

d) Whether the finding of the court below  that  the  plaintiff  is  in  joint  possession  of  the  suit  property  is  correct  in  the  absence  of  any  other  finding to that effect?”

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20.   The learned Single Judge of the High Court did  not  formulate  any  substantial  question  of  law  but  considered the same as mentioned hereinabove. 21. To conclude, the learned Single Judge recorded the  following findings :

“since  I  have   come  to  the  conclusion  that  there  are  no  other  properties apart from the suit property, the  substantial question of law that have been  formulated by the appellant   only on facts  and  no  substantial  question  of  law  has  arisen  for  consideration  in  the  Second  Appeal.

In the result, the second appeal fails  and  the  same  is  dismissed.   Consequently,  the M.P. is closed.  No costs.”

22. Feeling  aggrieved  and  dissatisfied  with  the  said  judgment   and  decree  passed  in   the  Second Appeal,  appellant-defendant  No.4  is  before  us  challenging  the  same on variety of grounds. 23. During the pendency of the appeal, respondent No.3,  who  was  a  spinster,  died.   Consequently,  on  an  application being filed, her name came to be deleted. 24. Since  appellant  was  appearing  in  person,  it  was  thought fit to appoint an amicus curiae for the case.  Accordingly, Mr. Sanjay Parikh  was appointed to address

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this  appeal.   He  has  contended  that   the  following  questions are to be answered by us :

1)  As  per  the  provisions  contained  in  Hindu  Succession Act, 1956, unmarried daughter is only  entitled for right to residence but not for any  exclusive share.   

2) Despite the registered deed of partition having  been filed, the courts below committed an error  in not including the other properties inherited  by their father, late Shri A.V. Venkataraman.  Thus, the suit filed by respondent No.1 claiming  partial partition was bad and deserved to be  dismissed.

With regard to Question No.1: 25.   Section 23 of the Hindu Succession Act, 1956 has  since been omitted w.e.f. 9.9.2005, but before omission,  it stood as thus :

“23. Special provision respecting dwelling- houses.-  Where  a  Hindu  intestate  has  left  surviving  him  or  her  both  male  and  female  heirs specified in class I of the Schedule  and his or her property includes a dwelling- house wholly occupied by members of his or  her  family,  then,  notwithstanding  anything  contained in this Act, the right of any such  female  heir  to  claim  partition  of  the

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dwelling-house shall not arise until the male  heirs  choose  to  divide  their  respective  shares therein; but the female heir shall be  entitled to a right of residence therein:

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

26. In a recent judgment of this Court in G. Sekar v.  Geetha (2009) 6 SCC 99 pronounced by one of us (Hon'ble  S.B. Sinha,J.), the effect of amendment in the Hindu  Succession Act, 1956 by reason of the Hindu Succession  (Amendment) Act, 2005 insofar as therein Section 23 has  been omitted, was considered.  It was held as under :

“21.  The  said  property  belonging  to  Govinda  Singh,  therefore,  having  devolved  upon  all  his  heirs  in  equal  share  on  his  death,  it  would  not  be  correct  to  contend  that  the  right,  title  and  interest  in  the  property  itself  was  subjected  to  the  restrictive right contained in Section 23 of  the Act.  The title by reason of Section 8 of  the  Act  devolved  absolutely  upon  the  daughters  as  well  as  the  sons  of  Govinda  Singh.  They had, thus, a right to maintain a  suit for partition.  Section 23 of the Act,  however, carves out an exception in regard to  obtaining a decree for possession inter alia  in a case where dwelling house was possessed  by a male heir.  Apart therefrom, the right  of a female heir in a property of her father,  who  had  died  intestate  is  equal  to  her  brother.   Section  23  of  the  Act  merely  restricts the right to a certain extent.  It,

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however, recognises the right of residence in  respect  of  the  class  of  females  who  come  within the purview of the proviso thereof.  Such  a  right  of  residence  does  not  depend  upon  the  date  on  which  the  suit  has  been  instituted  but  can  also  be  subsequently  enforced by a female, if she comes within the  purview of the proviso appended to Section 23  of the Act.”

27. However, on account of death of Respondent No.3,  unmarried sister of the parties, the said question  No.1  had become academic in nature and it was not necessary  for us to answer the same  but as it stood answered in a  recent judgment of this Court in  G. Sekar (supra), to  put the controversy at rest, we have considered this  aspect of the matter also and answered it accordingly  hereinabove.  With regard to Question No.2: 28. For  deciding  question  No.2,  it  is  necessary  to  examine  Section  29A  of  the  Act  which  has  been  incorporated  vide  Tamil  Nadu  Act  1  of  1990  Sec.2  w.r.e.f. 25.3.1989 and reads as under :

“29A.  Equal  rights  to  daughter  in  coparcenary  property.-  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

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manner as a 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 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 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;

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(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.”

29. Perusal of the aforesaid provision of law makes it  abundantly clear that the daughters who have got married  prior to 1989 may not have equal share as that of a son  but the daughters who got married after 1989 would have  equal share as that of a son.  In other words, daughters  who got married after 1989 would be treated at par with  son having the same share in the property. 30. This legal position has not been disputed seriously  by  the  learned  counsel  for  respondents.   But  the  question is whether all the properties left behind by  late A.V. Venkataraman were included in the plaint for  partition or not. 31. Critical  examination  of  the  registered  deed  of  partition would show that all the immovable properties  inherited by late A.V. Venkataraman were not included in  the suit filed by respondent no.1.  The courts below  committed grave error in coming to the conclusion that  appellant has not disclosed, with documentary proof with  regard to other properties inherited by her late father.

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32. In the light of the partition deed available on  record, no further proof thereof was required, more so,  when plaintiff himself relied on the same.  According to  us, this aspect of the matter has not been considered by  the courts below. 33. Thus,  after having  considered the  submissions of  the learned counsel for the parties and after perusal of  the  records,  we  are  of  the  considered  opinion  that  matter deserves to be remanded to the trial court on the  following grounds :

1) That  all  the  properties  that  were  inherited by the father of the parties by  virtue  of  registered  deed  of  partition  dated 27.4.1954 have not been included in  the partition suit.

2) The  appellant  herein  had  taken  a  consistent  stand  right  from  the  very  beginning that unless all the properties  are  included  in  the  plaint,   the  suit  would be bad and partial partition cannot  be effected.

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34. The courts below committed an error in giving much  weight to the legal notice sent by the appellant and  still  ignoring  the  documents  filed  and  admitted  by  parties wherein it was clearly mentioned that apart from  the  property  for  which  partition  was  claimed  by  the  respondent No.1-plaintiff, there were other properties  as well. 35. In  the  light  of  the  foregoing  observations,  judgment  and  decree  passed  by  the  courts  below  are  hereby set aside and quashed.  The matter is remitted to  the Trial court for giving opportunity to parties to  amend  their  respective  pleadings,  to  file  additional  documents and to lead further evidence in support of the  amended pleadings.  The Trial  Court thereafter would  pass   a  judgment   after  appreciating  the  additional  pleadings and the evidence adduced thereon. 36. Since the matter is old, parties are directed to  appear before the Trial Court on 1st September 2009 and  would participate in the proceedings without asking for  undue  adjournments.   The  Trial  Court  would  also  endeavour to deliver the judgment within six months from  the date of completion of pleadings of the parties.  37. We  also  record  our  appreciation  for  Mr.  Sanjay  Parikh, Advocate, who appeared as amicus for rendering

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his valuable time in bringing correct legal position and  facts to our notice. 38. The  appeal  thus  stands  allowed  to  the  extent  mentioned hereinabove, looking to the facts of the case,  the parties to bear their respective costs.

.................J.                         [S.B. Sinha]

   .................J. [Deepak Verma]

New Delhi. August 03, 2009.