R. Banumathi, J.@mdashBeing aggrieved by the preliminary decree for partition directing division of suit properties into six shares and allot one such share to the Plaintiff, the Plaintiff has preferred this appeal. For convenience, parties are referred as per their array in the suit. Plaintiff and 2nd Defendant-Shanmugam are the daughter and son of late Purushotham Chettiar and 1st Defendant. The suit properties were allotted to Purushotham Chettiar under Ex. A2-family partition deed dated 9.9.1962 in which Purushotham Chettiar was allotted ''C'' Schedule properties. During the life time of Purushotham Chettiar, he was in enjoyment of the suit properties and was collecting the rental income from various tenants. Plaintiff got married in the year 1981-1982.
2. Case of Plaintiff is that her father was always attached to her as she was the only daughter in the family. Purushotham Chettiar died intestate on 30.11.2001 leaving the Plaintiff and the Defendants to succeed his estate. Further case of Plaintiff is that after death of father-Purushotham Chettiar, Defendants were paying share of the rents and income to the Plaintiff and then all of a sudden they stopped paying any amount to her. Plaintiff issued Ex. A. 5-notice (dated 26.3.2005) demanding her share in the sale proposed and also her lawful share in other properties. Defendants received Ex. A. 5-notice and sent Ex. A. 6-reply (dated 31.3.2005) containing false allegations. Further case of Plaintiff is that only after persuasion and assurance by the Defendants, she along with the Defendants executed Ex. A. 7-sale deed (dated 4.7.2005) in favour of one Umarani and Ex. A. 8-sale deed (dated 17.6.2005) in favour of one Mani. According to Plaintiff, she is in joint and constructive possession of the suit properties along with the Defendants. Inspite of attempts by the Plaintiff, Defendants have not come forward with any amicable settlement and therefore, Plaintiff filed the suit seeking for partition and possession of the properties into three equal shares and allot one such share to the Plaintiff. Plaintiff also prayed for permanent injunction restraining the Defendants from in any manner encumbering or alienating the properties.
3. Resisting the Plaintiff''s suit, Defendants filed written statement contending that the suit properties and other properties are ancestral properties of Purushotham Chettiar and the same being allotted to him under Ex. A2-partition deed and as such the properties are ancestral in nature at the hands of Plaintiff and the Defendants. Plaintiff got married some time in 1981-82. Purushotham Chettiar died intestate on 30.11.2001. Plaintiff, being a female heir, and having married in 1981-82, i.e., prior to passing of Hindu Succession Act (Tamil Nadu) Amendment Act, 1989, Plaintiff is not entitled to any share in the ancestral properties. Hindu Succession (Amendment) Act 2005 came into force only with effect from 9.9.2005 and that the Plaintiff is not entitled to claim the benefits of the Amendment Act, 2005. Case of Defendants is that Plaintiff can claim only from and out of her father-Purushotham Chettiar''s half share along with her mother and brother and thus Plaintiff can claim only 1/6th share of the total suit properties, while the 1st Defendant-wife of Purushotham Chettiar is entitled to 1/6th share and 2nd Defendant is entitled to 4/6th share. Defendants interalia averred that the family has got debt to the tune of Rs. 6 lakhs and that the Plaintiff has to share the burden of family debt.
4. On the above pleadings, six issues were framed in the trial Court. Before the trial Court, Plaintiff-Vijayalakshmi examined herself as P.W. 1. Exs. A1 to A8 were marked on the side of Plaintiff. On the side of Defendants, 2nd Defendant-Shanmugam examined himself as D.W. 1. No document was marked on the side of Defendants.
5. Upon consideration of oral and documentary evidence, trial Court held that Purushotham Chettiar died on 30.11.2001 on which date there was a notional partition. Trial Court further held that as per Section 6(5) of Hindu Succession (Amendment) Act 2005, the Amendment Act shall not apply to a partition, which has been effected before the 20th day of December, 2004. Trial Court further held that Plaintiff having been married in 1981-82 cannot claim share in the ancestral properties on par with the son. Trial Court held that Plaintiff can claim 1/3rd share from out of Purushotham Chettiar''s half share and that Plaintiff is entitled to only 1/6th share and on those findings trial Court passed the preliminary decree for partition of Plaintiff''s 1/6th share in the suit properties.
6. Being dissatisfied with the judgment and decree of the trial Court in not allotting 1/3rd share to the Plaintiff, Plaintiff has come forward with this appeal. Pending appeal, 2nd Defendant-Shanmugam died and his wife Nirmala was brought on record as 3rd Respondent in this appeal for proper adjudication.
7. Challenging the impugned judgment, Mr. S.L. Sudarsanam, learned counsel for Appellant contended that once the property was allotted to Purushotham Chettiar, it was his absolute property and hence, Plaintiff is entitled to equal share. Learned counsel would contend that trial Court failed to note that even as per Exs. A7 and A8-sale deeds, after the death of Purushotham Chettiar, Plaintiff and Defendants have jointly sold the property in equal shares i.e. 1/3rd share each and hence Appellant was entitled to 1/3rd share in the plaint schedule properties instead of 1/6th share. Learned counsel for Appellant submitted that as per Hindu Succession (Amendment) Act 39 of 2005 which came into effect from 09.9.2005, Appellant is entitled to equal share and that entitled to 1/3rd share in the suit properties. Placing reliance upon
8. Per contra, Mr. V. Lakshminarayan, learned counsel for Respondents would submit that on the death of Purushotham Chettiar on 30.11.2001, notional partition would take place. It was further submitted that Appellant can claim share only from out of half share of Purushotham Chettiar. Learned counsel contended that even though Hindu Succession (Tamil Nadu) Amendment Act 1 of 1990 came into effect from 25.3.1989 by which Sections 29A to 29C were introduced whereby in a Hindu family governed by Mitakshara law, daughter of a co-parcener by birth is equally treated on par with a son. The Amendment Act specifically excludes married daughter. Learned counsel further submitted that after the Central Amendment came into existence with effect from 09.9.2005 and the said Act is given prospective effect and notional partition that took place on the death of the father on 30.11.2001 shall not be affected. Learned counsel would further submit that Appellant having got married in 1981-1982, there is no question of applicability of Hindu Succession (Tamil Nadu) Amendment Act 1 of 1990. It was further submitted that even under Tamil Nadu Act, u/s 29A (iv), the effect of the said provision has been taken away in respect of daughters married before the commencement of Hindu Succession (Tamil Nadu) Amendment Act 1989 which came into force from 25.3.1989. Therefore, according to Respondents, Appellant having got married in 1981-82, cannot claim any share equally on par with the 2nd Defendant.
9. Upon consideration of rival contentions and evidence and materials on record and the judgment of the trial Court, the following points arise for consideration in this appeal:-
(1) Whether the suit properties are absolute properties of Purushotham Chettiar?
(2) Whether inclusion of Appellant as vendor in Exs. A7 and A8-sale deeds would amount to acknowledging 1/3rd right of Plaintiff in the suit properties?
(3) By virtue of Hindu Succession (Amendment) Act 39 of 2005, whether Plaintiff is entitled to 1/3rd share in the suit properties?
(4) Whether the judgment and decree of the trial Court warrants interference?
10. Points No. 1 and 2:-
Suit properties and other properties were allotted to Purushotham Chettiar under Ex. A2-partition deed (9.9.1962). In the said partition effected between Purushotham Chettiar and his two brothers, Purushotham Chettiar was allotted "C" schedule properties. After allotment, Purushotham Chettiar was in possession and enjoyment of the suit properties.
11. Case of Appellant is that the properties so allotted to Purushotham Chettiar which were in possession and enjoyment are his absolute properties and that Appellant is entitled to 1/3rd share. There is no force in the contention that the properties allotted to Purushotham Chettiar under Ex. A2-partition deed are his absolute properties. Under Ex. A2-partition deed effected between Purushotham Chettiar and his two brothers, Purushotham Chettiar was allotted "C" schedule properties.
12. All the properties inherited by a male Hindu from his father, father''s father or father''s father''s father are his ancestral properties. If a person has no son, son''s son or son''s son''s son in existence at the time when he inherits the property, then only he holds the property as absolute owner thereof. However, if a male has son, son''s son or son''s son''s son in existence at the time of his inheritance or they were born to him subsequently, they become entitled to an interest in it by the mere fact of their birth in the family. When the suit properties were allotted to Purushotham Chettiar under Ex. A2-partition deed and when Purushotham Chettiar had son (2nd Defendant), Purushotham Chettiar cannot claim to hold the property as absolute owner. Plaintiff is not right in contending that the suit properties were absolute properties of Purushotham Chettiar, entitling the Plaintiff to claim 1/3rd share on par with the 2nd Defendant.
13. Under Ex. A7-sale deed (04.07.2005) executed infavour of N. Umarani and under Ex. A8-sale deed (17.06.2005) executed infavour of S. Mani, Plaintiff was included as one of the vendor along with Defendants 1 and 2. Learned counsel for Appellant contended that only because Plaintiff had 1/3rd share in the properties, she was included as vendor in Exs. A7 and A8-sale deeds. Contention of Appellant is that by inclusion of Plaintiff along with Defendants 1 and 2 for selling the properties, Defendants have acknowledged Plaintiff''s 1/3rd share in the family properties.
14. The above contention does not merit acceptance. Inclusion of Plaintiff as one of the vendor in Exs. A7 and A8-sale deeds does not amount to acknowledging her 1/3rd share in the family properties. Prior to Amendment Act 39 of 2005, as per Section 6 of Hindu Succession Act, on the death of male member of a Hindu family belonging to Mitakshara coparcenary, property devolves by survivorship to the surviving members of the coparcenary. Proviso to sub-section (b) confers rights upon female members i.e. if deceased coparcener died leaving female heirs in Class I heirs, the interest of the coparcenary in the Mitakshara coparcenary property shall devolve upon Class I heirs by testamentary or intestate succession and not by survivorship. Plaintiff being a daughter of Purushotham Chettiar is a Class I heir. Since Plaintiff traces her right through her father as Class I heir of first schedule, when Purushotham Chettiar died intestate in 2001, as per Section 6 of Hindu Succession Act then in existence, Plaintiff had a right in the family properties i.e. 1/3rd share from out of half share of Purushotham Chettiar. Since Purushotham Chettiar died intestate, quite naturally, Plaintiff was included as a vendor in Exs. A7-A8-sale deeds. Her inclusion as vendor in Exs. A7 and A8-sale deeds would not in any way lead to the conclusion that Defendants have acknowledged Plaintiff''s 1/3rd share in the family properties.
15. Points No. 3 and 4:-
Contention of Appellant is that as per Hindu Succession Amendment Act 39 of 2005 which came into force from 09.09.2005, females are entitled to equal shares and that the said Act is retrospective effect.
16. Section 6 of Hindu Succession Act as it stood prior to amendment reads as follows:-
6. Devolution of interest in coparcenary property.-When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act:
Provided that, if the deceased had left him surviving a female relative specified in class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.
Explanation 1.-For the purposes of this section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.
Explanation 2.-Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein.
17. Law relating to joint Hindu family governed by Mitakshara law has undergone many changes. However, the States like Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra have made changes in the Act, so as to extend equal rights to daughters in a Mitakshara coparcenary.
18. Hindu Succession Act (Tamil Nadu) Amendment Act, 1989 (Act 1 of 1990) came into effect from 25.3.1989 by which Sections 29A to 29C were introduced. Under Hindu Succession (Tamil Nadu) Amendment Act 1 of 1990 in a Hindu family governed by Mitakshara law, daughter of a coparcener by birth is equally treated on par with a son. As per Section 29A (iv), the effect of Amendment treating the daughter on par with a son has been taken away in respect of daughters married before the commencement of Hindu Succession (Tamil Nadu) Amendment Act 1 of 1990 which came into force from 25.3.1989. Plaintiff having got married in 1981-82, as per Hindu Succession (Tamil Nadu) Amendment Act 1 of 1990, Plaintiff cannot claim equal right on par with male members.
19. Contention of Appellant is that Hindu Succession Act was amended by Amendment Act 39 of 2005 and the Central Amendment Act has got retrospective effect and by virtue of Amendment Act 39 of 2005, Plaintiff is entitled to claim 1/3rd share in the family properties on par with 2nd Defendant.
20. After amendment, Section 6 of Hindu Succession Act reads as follows:-
6. Devolution of interest in coparcenary 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, 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 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 pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and
(c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased 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 pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be.
Explanation.-For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.
(4)...
(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004.
Explanation.-For the purposes of this section "partition" means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by the decree of a Court).
By virtue of amendment to Section 6, a daughter of a coparcener in a Joint Hindu family governed by the Mitakshara law now becomes a coparcener in her own right and thus enjoys rights equal to those hitherto enjoyed by a son of a coparcener. Now a daughter stands on par with son has a right to seek partition of coparcenary property.
21. Sub-section (5) to Section 6 of Hindu Succession Act states that nothing contained in Section 6 shall apply to a partition effected before 20th December, 2004. Explanation to sub-section (5) stipulates that "partition'' means any partition made by execution of a deed of partition duly registered under the Registration Act or partition effected by the decree of a Court. Since Purushotham Chettiar died on 30.11.2001, on the date of death of Purushotham Chettiar notional partition was effected. By virtue of sub-section (5) of Section 6 of the Act the notional partition effected on the death of Purushotham Chettiar on 30.11.2001 remains unaffected. Therefore, Plaintiff can claim right only from out of father''s half share i.e. 1/6th share.
22. Contending that amended provisions to Section 6 has got retrospective effect and that notional partition cannot be said to be a partition effected within the meaning of sub-section (5) of Section 6 and the explanation thereon, the learned counsel for Appellant placed reliance upon
23. In the said case, preliminary decree was passed in a partition suit on 19.3.1999-prior to coming into effect of Hindu Succession (Amendment) Act 39 of 2005. After coming into effect of Hindu Succession (Amendment) Act 39 of 2005 and prior to passing of final decree and prior to Court commissioner determining the shares of the parties, daughters filed application claiming their rights u/s 6 (as amended) of Hindu Succession Act for passing another preliminary decree, so as to include their share in the coparcenary properties as per the amended provisions. Trial Court allowed the amendment application filed by the daughters and the High Court set aside the order of the trial Court which was challenged before the Supreme Court. Allowing the appeal filed by the daughters and restoring the trial Court''s order allowing the amendment application filed by the daughters, the Hon''ble Supreme Court held as under:-
11. The new Section 6 provides for parity of rights in the coparcenary property among male and female members of a joint Hindu family on and from 9.9.2005. The legislature has now conferred substantive right in favour of the daughters. According to the new Section 6, the daughter of a coparcener becomes a coparcener by birth in her own rights and liabilities in the same manner as the son. The declaration in Section 6 that the daughter of the coparcener shall have same rights and liabilities in the coparcenary property as she would have been a son is unambiguous and unequivocal. Thus, on and from 9.9.2005, the daughter is entitled to a share in the ancestral property and is a coparcener as if she had been a son.
24. Explaining the scope of sub-section (5) of Section 6 and the explanation thereon, in Paragraph (12) of the judgment, the Hon''ble Supreme Court held as under:-
12. The right accrued to a daughter in the property of a joint Hindu family governed by the Mitakshara law, by virtue of the 2005 Amendment Act, is absolute, except in the circumstances provided in the proviso appended to sub-section (1) of Section 6. The excepted categories to which new Section 6 of the 1956 Act is not applicable are two, namely, (i) where the disposition or alienation including any partition has taken place before 20.12.2004; and (ii) where testamentary disposition of property has been made before 20.12.2004. Sub-section (5) of Section 6 leaves no room for doubt as it provides that this section shall not apply to the partition which has been effected before 20.12.2004. For the purposes of new Section 6 it is explained that "partition" means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 or partition effected by a decree of a court. In light of a clear provision contained in the Explanation appended to sub-section (5) of Section 6, for determining the non-applicability of the section, what is relevant is to find out whether the partition has been effected before 20.12.2004 by deed of partition duly registered under the Registration Act, 1908 or by a decree of a court. In the backdrop of the above legal position with reference to Section 6 brought in the 1956 Act by the 2005 Amendment Act, the question that we have to answer is as to whether the preliminary decree passed by the trial court on 19.3.1999 and amended on 27.9.2003 deprives the appellants of the benefits of the 2005 Amendment Act although final decree for partition has not yet been passed.
25. Contention of Appellant is that as per the ratio of the above decision, the notional partition effected on the death of father Purushotham Chettiar on 30.11.2001 cannot be said to be the partition within the meaning of sub-section (5) of Section 6 of Hindu Succession Act and that there was no partition effected before 20.12.2004 Learned counsel for Appellant contended that in the said case, applying the amended provisions, the Hon''ble Supreme Court directed re-opening of inclusion of daughters'' share in the preliminary decree passed on 19.3.1999 and amended preliminary decree on 27.9.2003 and therefore, the Hon''ble Supreme Court categorically held that Amendment Act 39 of 2005 has retrospective effect. It was therefore contended that Amendment Act has got retrospective effect and by virtue of amended provisions of Section 6 of Hindu Succession (Amendment) Act 2005, Plaintiff has got right in the family properties on par with male member.
26. The above contention does not merit acceptance. In the said case before the Hon''ble Supreme Court, the suit was filed by the daughters against the father and brother. During pendency of the suit, father died in 1993. Preliminary decree dated 19.03.1999 was passed which was subsequently amended on 27.09.2003. Suit for partition is not disposed of by passing of preliminary decree. It is by final decree, the immovable property of a joint Hindu family is partitioned by metes and bounds in the interregnum period i.e. after passing of preliminary decree and before final decree was passed, the Hon''ble Supreme Court held that in the pending matter 2005 before the Court amendment was brought in to Section 6 by virtue of Amendment Act could be applied. In the case on hand, father Purushotham Chettiar died way back on 30.11.2001, on which date notional partition had taken place and that succession having been opened in 2001. That notional partition effected in 2001 which is before 20.12.2004 is not in any way affected by the amendment to Section 6 of the Act.
27. Observing that if the succession is opened prior to Hindu Succession (Amendment) Act, 2005, the provisions of Amendment Act, 2005 would have no application, in
19. The Act indisputably would prevail over the old Hindu Law. We may notice that the Parliament, with a view to confer right upon the female heirs, even in relation to the joint family property, enacted Hindu Succession Act, 2005. Such a provision was enacted as far back in 1987 by the State of Andhra Pradesh. The succession having opened in 1989, evidently, the provisions of Amendment Act, 2005 would have no application. Sub-section (1) of Section 6 of the Act governs the law relating to succession on the death of a coparcener in the event the heirs are only male descendants. But, proviso appended to sub-section (1) of Section 6 of the Act creates an exception. First son of Babu Lal viz., Lal Chand, was, thus, a coparcener. Section 6 is exception to the general rules. It was, therefore, obligatory on the part of the plaintiffs-respondents to show that apart from Lal Chand, Sohan Lal will also derive the benefit thereof. So far as the second son Sohan Lal is concerned, no evidence has been brought on records to show that he was born prior to coming into force of Hindu Succession Act, 1956.
Following the ratio of the above decision, in
28. In the instant case, Purushotham Chettiar died on 30.11.2001, the date on which notional partition had taken place and succession opened. When notional partition has taken place before 20.12.2004, as contemplated under Explanation to sub-section (5) of Section 6 of the Act, the said partition is not affected. Admittedly, Plaintiff got married in 1981-82. In this circumstances, as per the law then in force, Plaintiff is not entitled to claim share in the properties on par with male member. Plaintiff can claim her 1/3rd share from out of her father''s half share i.e. 1/6th share. Trial Court rightly held that Plaintiff is entitled to 1/6th share in the suit properties and the said finding of the trial Court does not suffer from any error warranting interference. There is no merit in this appeal and the appeal is liable to be dismissed. In the result, the judgment and decree of the trial Court in O.S. No. 17 of 2006 dated 30.04.2008 on the file of Additional District cum Sessions Judge, Fast Track Court No. II, Ranipet is confirmed and the appeal is dismissed. Consequently, connected Miscellaneous Petitions are closed. However, there is no order as to costs in this appeal. The trial Court (Additional District cum Sessions Judge, Fast Track Court No. II, Ranipet is directed to expedite the final decree proceedings and shall dispose of the final decree proceedings preferably, within a period of nine months.
