IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 09.04.2009 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.91 of 2006 and C.M.P.No.1477 of 2006 1. D.Govindarajulu 2. N.G.Sureshchandrakumar 3. N.G.Premila Devi 4. N.G.Nirmaladevi ... Appellants/Appellants/Defendants vs. 1. Lakshmi Bai 2. Swarna Latha 3. Hemalatha 4. Gajendran 5. P.Vasantha 6. P.Rajendiran 7. Jaikrishnan 8. Adhikesavan 9. Neela 10. Saroja Padma (deceased) Kamala (deceased) 11. P.Renuka 12. P.Nirmala ... Respondents/Plaintiffs/Defendants 16,9,19,8,6, (Respondents 5 to 12 set ex-parte) This second appeal is filed u/s 100 of C.P.C. against the judgement and decree dated 19.01.2005 passed by the learned Additional District and Sessions Judge, Fast Track Court No.III, Chennai in A.S.No.268 of 2002 confirming the judgement and decree dated 29.04.2002 passed by the learned III Assistant Judge, City Civil Court, Chennai in O.S.No.4083 of 1983. For Appellant 1 : Mr.D.Govindarajulu party-in-person Appellant 2 :Mr.A.N.Rajan for Mr.P.Chandrasekaran Appellants 3 & 4 : No appearance https://hcservices.ecourts.gov.in/hcservices/ For Respondent 1 : Mr.V.Baskaran JUDGMENT This second appeal is focussed by D1, D7 (in O.S.No.4083 of 1983) and D12 and D13 (in A.S.No.268 of 2002) animadverting upon the judgement and decree dated 19.01.2005 passed by the learned Additional District and Sessions Judge, Fast Track Court No.III, Chennai in A.S.No.268 of 2002 confirming the judgement and decree dated 29.04.2002 passed by the learned III Assistant Judge, City Civil Court, Chennai in O.S.No.4083 of 1983, which is the suit for partition. For convenience sake, the parties are referred to here under according to their litigative status before the trial Court. 2. The first respondent/ plaintiff filed the suit for partition as against the defendants. D1 entered appearance and filed the written statement; D2 to D4 filed the written statement separately and D7 also filed a separate written statement resisting the suit. The trial court framed the relevant issued based on the pleadings. 3. During trial, the plaintiff examined herself as P.W.1., and Ex.A1 was marked. The first defendant examined himself as DW1 along with one Padma DW2 and Exs.B1 to B9 were marked. 4. Ultimately the trial Court decreed the suit; as against which, appeal was filed by defendants 1 and 7, for nothing but to be dismissed by the first Appellate Court confirming the judgment and decree of the trial Court. Being disconcerted and aggrieved by the judgment of both the Courts below, this Second Appeal has been filed by the defendants by setting out the substantial questions of law in the memorandum of appeal. 5. The learned counsel for the plaintiff would argue that failure to serve notice to those who remained exparte before the lower Court as well as the Appellate Court in the Second Appeal was not proper as they are entitled to notice. I would like to highlight that the appellant is right in not taking up notice to those parties who remained exparte before the lower Courts as it is based on the established practice of this Court as well as settled law. 6. My learned Predecessor framed the following substantial questions of law for consideration: (i) Whether in a co-parcenery Hindu joint family, the plaintiff is entitled to a share as claimed ? (ii) Whether the appellants 1 and 2 have acquired the entire property by operation of Hindu Law or not? https://hcservices.ecourts.gov.in/hcservices/ 7. A 'resume' of facts, which are absolutely necessary and germane for the disposal of this appeal, would run thus:- (a) Indubitably and indisputably, incontrovertibly and unassailably, the suit property along with other properties originally belonged to one Parthasarathy Naidu, who died leaving behind his two sons, namely, Perumal Nadu and Doraisamy Naidu; Doraisamy Naidu died in the year 1972, leaving behind his son D1- Govindarajulu Naidu and his five daughters, namely, the plaintiff and D2 to D5; during the pendency of the suit, D2 died, whereupon D8 to D12, her legal heirs were impleaded; D7 is the son of D1; D6 is none but the grand son of the deceased Perumal Naidu, so to say, the son of Perumal Naidu's daughter. (b) The plaintiff's contention is that, as per Ex.A1-the registered partition deed dated 07.10.1929, the said Perumal Naidu and Doraisamy Naidu got partitioned their various coparcenary properties and got divided their coparcenary status and in that the suit property house herein was also divided, so to say, each was allotted half share in the suit house; as such, they became divided coparceners; Perumal Naidu had three sons and they died in unmarried state; however, in that line of Perumal Naidu, out of his three sons, Pandari happened to be the last sole surviving coparcener, who executed the 'Will' in favour of D6. At this juncture, it is worthwhile to highlight that D6 obtained a letter of administration from this Court relating to the said Will. The plaintiff would contend that regarding Doraisamy Naidu's line is concerned, Doraisamy Naidu enjoyed his portion and died during the year 1972, leaving behind his one son D1 and five daughters, namely, the plaintiff and D2 to D5. However, the plaintiff as per her own calculation of shares, claimed 1/6th share in the half share of Doraisamy Naidu. 8. Whereas, remonstrating and refuting, denying and challenging, but accepting the relationship, D1 and D7 would contend that the said partition deed, Ex.A1 was not in stricto sensu, a partition deed, but only a family arrangement, as per which, Doraisamy Naidu was expected to pay a sum of Rs.2,400/- to Perumal Naidu towards, Perumal Naidu's half share in the and become a full owner of the house; however, Doraisamy Naidu did not pay that amount to Perumal Naidu; the joint status of co-parcenery continued; consequent upon the death of Perumal Naidu and his three sons, the entire suit property came to the ownership of D1 and along with him D7- his son is also entitled to his share in the suit property. However, the five daughters of Doraisamy Naidu, including the plaintiff, are not entitled to the co- parcenary property; the letters of administration was challenged by him before this Court and he was permitted to agitate the said Will at the appropriate forum at the appropriate stage. D6 remained ex- parte and accordingly, D1 and D7 prayed for the dismissal of the suit. https://hcservices.ecourts.gov.in/hcservices/ 9. The judgement of the trial Court would evince that based on evidence, it gave a factual finding that Ex.A1 being a registered partition deed was acted upon and it caused division in the joint coparcenery status of Doraisamy Naidu and Perumal Naidu; whereupon ultimately, Pandari-the sole surviving coparcener, on the side of Perumal Naidu was justified in executing the Will in favour of D6, over which, D1 and D7 cannot claim any right. The first appellate Court also agreed with the finding. 10. The plaintiff's version in the plaint is that Perumal Naidu and Doraisamy Naidu have got partitioned, as per Ex.A1, the property and even Doraisamy Naidu had not paid the sum of Rs.2,400/- to Perumal Naidu or his heirs, so as to acquire the share of Perumal Naidu. In fact, it is the case of D1 that Doraisamy Naidu did not pay the sum of Rs.2,400/- to Perumal Naidu or his heirs. As such, in view of the supine admission and evidence given by D1, by no stretch of imagination, Doraisamy Naidu could be held to have acquired the full title over the suit property and Doraisamy Naidu had only his half share in the suit house. 11. The plea of D1 that Ex.A1 is not a partition deed and it is only a family arrangement and that there was no division of coparcenary status, failed to carry conviction with both the Courts below, who considering the oral evidence adduced before them, arrived at the concurrent finding that Ex.A1 was a partition deed and there occurred division in the coparcenary status between Doraisamy Naidu and Perumal Naidu. In fact, the evidence would display and demonstrate that D1 was employed in Andhra Pradesh and only during the year 1983, he came to Chennai and came to understand that D6 was collecting rents for his half share in the suit house. 12. It is a trite proposition of law that in a partition suit the plaintiff is the defendant and the defendant is the plaintiff. However, here the D1 or D7 has not chosen to make any counter claim or a prayer in the written statement seeking the relief that the partition deed Ex.A1 was not a partition deed, but it was only a family arrangement and that the Will was void ab initio and not binding, etc. However, D1 and D7 have only prayed for the dismissal of the suit and nothing more. 13. The contention of D1 that D6 remained exparte and he has not chosen to press into service the Will as well as the letters of administration which he obtained from the Court, in my opinion, is not a sound plea. The lower Court adverting to the evidence available on record pointed out that D1 despite knowing the said Will executed by Pandari in favour of D6, had not chosen to challenge the same. To the risk of repetition without being tautologus, I would highlight that the plaintiff in this suit admitting the validity of the Will and also the consequent letters of administration obtained by D6 and recognising the half share of D6 in the suit property, https://hcservices.ecourts.gov.in/hcservices/ prayed for her share in the remaining half share which belonged to Doraisamy Naidu and hence she was not duty bound to make any prayer adverse to the Will or letters of administration. But on the other hand, it is D1 who disputes the Will and the letters of administration, but he has not despite lapse of decades together chosen to challenge the Will. Since the plaintiff accepted the half share of D6, presumably D6 has chosen to remain exparte as his share is in tact. 14. It is a trite proposition of Hindu law that a sole surviving co-parcener could dispose of his share by Will, even anterior to Section 30 of the Hindu Succession Act, 1956 coming into vogue and it is a trite proposition of law and it is found exemplified in the famous Treatise Mulla Hindu Law, Nineteenth Edition in page No.367 as under: "A sole surviving coparcener could, however, bequeath the joint family property as if it was his separate property." Here admittedly as per D1's version, Pandari executed the Will even in the year 1946 and that he died during the year 1948, whereby the Will came into effect even in the year 1948. Even though the defendant No.1 would contend in the grounds of appeal that in CMP No.31 of 1990 of OSA No.344 of 1989 before this Court, the letters of administration granted in favour of D6 relating to the said Will executed by Pandari was challenged, yet this Court as per the order directed D1 to prove his property rights in the appropriate proceedings. However, quite antithetical to D1's own stand, he has not chosen to agitate the Will by initiating appropriate proceedings and this fact also has been correctly considered by the trial Court and confirmed by the appellate Court. 15. The first defendant came forward with a far fetched plea as though Ex.A1, the partition deed was not really a partition deed, but family arrangement and in support of his argument, there is absolutely no iota or miniscule, shred or shard, pint-sized or scintilla of evidence. Section 91 and 92 of the Indian Evidence Act also would as such be an embargo for D1 to contend anything contrary to the terms contained in Ex.A1. I would like to cite the following decision of the Hon'ble Apex Court reported in (2003) 6 SCC 595 [Roop Kumar v. Mohan Thedani]. An excerpt from it would run thus: "17. It is likewise a general and most inflexible rule that wherever written instruments are appointed, either by the requirement of law, or by the contract of the parties, to be the repositories and memorials of truth, any other evidence is excluded from being used either as a substitute for such instruments, or to contradict or alter them. This is a matter both of principle and policy. It is of https://hcservices.ecourts.gov.in/hcservices/ principle because such instruments are in their own nature and origin, entitled to a much higher degree of credit than parol evidence. It is of policy because it would be attended with great mischief if those instruments, upon which men's rights depended, were liable to be impeached by loose collateral evidence." As such D1 being the son of Doraisamy Naidu who happened to be a party to Ex.A1 cannot contend contrary to Ex.A1. The records would reveal that the first defendant admitted candidly and categorically that he was aware of the partition deed Ex.A1 dated 07.10.1929 several decades ago itself. But he has not chosen to initiate any action in support of his contention that consequent upon the death of his father Doraisamy Naidu, he along with D3 became the absolute owners of the suit property. 16. The first defendant would put forward an untenable plea as though Ex.A1 would not bind him, on the ground that even as on the date of emergence of Ex.A1, D1 was alive, but he was not added as one of the parties to the partition deed Ex.A1. Such a plea by D1 is totally not contemplated under the Hindu Law. The plea based on the alleged facts that D1 was born earlier to Ex.A1 and in existence as on the date of emergence of Ex.A1 and he was not included in the partition deed, would not in any way affect the validity of the partition deed which emerged between the main co-parceners, viz., Doraisamy Naidu and Perumal Naidu. It is axiomatic in Hindu law that a minor son need not be added in the partition, provided his father represents the line. The doctrine of per capita and per stirpes would amply make the point clear. Throwing to winds the doctrine of representation, D1 went on dilating about his birth even anterior to the emergence of Ex.A1. When the law as highlighted by me supra is to the effect that D1's father could represent his line, then it is not necessary that Doraisamy's son D1 also should have been added as party in the partition deed. 17. Ex.A1, the registered partition deed would unambiguously and unequivocally highlight and spotlight, demonstrate and display, that there occurred division in co-parcenary status between Doraisamy Naidu and Perumal Naidu. A plain reading of the recitals would clearly prove that they decided not to continue as co-parceners and accordingly they also got their properties divided. An excerpt from the said Ex.A1 would run thus: @v';fspUtUf;Fk; ,d;iwa njjpapy; Vw;gl;l ghf gphptpid gj;jpuk; vd;dbtd;why; eh';fs; ,Jtiuapy; moapy; fz;l bc&oa{y;fspy; cs;s brhj;Jf;fis $hapz;lhf mDgtpj;Jf;bfhz;L te;J ,d;W Kjy; xUth; ghfj;jpy; ,d;bdhUtUf;F ahbjhU mf;Fk; ghj;jpaija[k; ,y;yhky; mth; mth;fSf;F te;j ghfj;ij mth; mth;fs; jhdhjp tpdpatpf;fphpa';fSf;F https://hcservices.ecourts.gov.in/hcservices/ chpj;jha; mDgtpf;f ntz;Lbkd;W ///// /////// /////// ////// ,e;j ghfgphptpidapy; fz;l brhj;Jf;fis ,e;j gj;jpuj;jpy; brhy;ypa gpufhuk; bgUkhas; eha[Ltpw;F te;j ghjp ghfj;ij mtUk; Jiurhkp eha[Ltpw;Fte;j ghjp ghfj;ij mtUk ;xUth; ghfj;jpy; ,d;bdhUtUf;F ahbjhU ghj;jpaija[k; !;jyje;jp <Lk; mf;Fk; ,y;yhky; mth; mth;fSf;F te;j ghfj;ij mth; mth;fs; xj;jp jhdhjp tpdnahf tpf;fpua';fSf;F chpj;jha; g[j;jpu bgsj;jpu ghuk;giuaha; Mz;L mDgtpj;Jf;bfhs;s ntz;oaJ/ ,g;gof;F Jiurhkp eha[L bgUkhs; eha[L Mfpa eh';fpspUtUk; Vnfhgpj;J v';fs; kndhuh$papy; rk;kjpj;J vGjpf;bfhz;l ghf gphptpid gj;jpuk;////@ 18. A plain reading of the above extract including the whole Ex.A1 would leave no doubt in the mind of any one that there emerged partition between Doraisamy Naidu and Perumal Naidu and by no stretch of imagination it could be termed as a mere temporary family arrangement and not a partition. As such, both the Courts below correctly held that there occurred division in co-parcenary status, and resulting in division in the properties concerned. 19. It is therefore crystal clear that the descendants of Doraisamy Naidu cannot claim any right or interfere with the right of Perumal Naidu's descendants and the alienee. Accordingly Perumal Naidu got his shares under Ex.A1 and enjoyed it and all his three sons died in unmarried state and out of them Pandari was the last surviving co-parcener in the line of Perumal Naidu. These are all admitted facts by D1 himself and in such a case, Pandari as the sole surviving co-parcener on the line of Perumal Naidu executed the Will in favour of D6, which cannot be found fault with by D1 by any stretch of imagination and as such, both the Courts below au fait with law and au courant with facts rendered their finding on that aspect. As such, it is crystal clear that D1 and D7 cannot be heard to contend that the Will executed by Pandari in favour of D6 was not valid and consequently the plea of D1 and D7 that the half share of Perumal Naidu also came to the share of Doraisamy Naidu is factually baseless and legally untenable. As such, excluding the half share in the suit property, the remaining half share alone could be claimed by Doraisamy Naidu and his descendants. D.W.1 in his chief examination itself stated as under: @ehd; 1950?y; Tl;Lwt[ Jiw gzpapy; nrh;e;J Me;jpu khepyj;jpy; gzpahw;wp 1983?y; Xa;t[ bgw;nwd;/ Xa;t[ bgw;w gpwF brd;id te;j nghJ 6?tJ vjph;thjp tHf;fpil brhj;jpy; ghjp thlif bgw;WtUtJ bjhpe;J bfhz;nld; mjw;F ehd; Ml;nrgiz bjhptpj;njd;/@ https://hcservices.ecourts.gov.in/hcservices/ (emphasis supplied) The candid and categorical admission by D1, as aforesaid, would totally torpedo his plea challenging Ex.A1 the partition deed and the Will and D1 and D7's plea claiming the entire suit property. D1's aforesaid admission would clinchingly establish that consequent upon Ex.A1 the partition effected there was actually division in status between Doraisamy Naidu and Perumal Naidu and as aforesaid, the last surviving co-parcener Pandari executed the Will in favour of D6 and after obtaining letters of administration from this Court, D6 has been in actual enjoyment of his half share by collecting rent from the half portion of the suit property. As such, D1 by his own deposition clearly uttered out the real fact as set out supra and it is therefore crystal clear that relating to the half share of Perumal Naidu which ultimately reached the hands of D6 cannot be questioned. 20. D1 himself also candidly admitted that Doraisamy Naidu had not paid the half value of the suit house amounting to Rs.2,400/- so as to acquire full ownership over the suit property. A fortiori, Doraisamy Naidu and his descendants were entitled to only half share in the suit property. 21. The contention of D1 and D6 that consequent upon the death of Doraisamy Naidu, they have become absolute owners is totally untenable in view of the settled legal position as contended in the then existed Section 6 of the Hindu Succession Act. Doraisamy Naidu admittedly died in the year 1972, long after the commencement of the Hindu Succession Act. As on the date of his death during the year 1972, the then existed Section 6 of the Hindu Succession Act would contemplate that if a co-parcener dies leaving behind a female heir as contemplated under class I of the Hindu Succession Act, the concept of survivorship would not prevail, but only the share of the deceased co-parcener would devolve upon his legal heirs under the Hindu Succession Act. 22. The first defendant, who appeared as the party-in-person, and who being an Advocate by profession, would submit that the claim of the plaintiff is not tenable as consequent upon the death of his father Doraisamy Naidu, his share devolved upon D1 as well as D1's son and the daughters are having no right over it. According to him, as per Tamil Nadu Hindu Succession (Amendment) Act, (Act 1 of 1990) only unmarried daughters could claim share as co-parceners and not the plaintiff who got married long before 25.03.1989, the date on which the Act came into force and that in the co-parcenery property, the plaintiff, being the married daughter of Doraisamy Naidu is having no right to claim any share. To say the least, such an argument as put forth by D1 is totally untenable and it is quite against the trite proposition of Hindu Law and antithetical to the provisions of law detailed and discussed supra. https://hcservices.ecourts.gov.in/hcservices/ 23. The then existed Section 6 of the Hindu Succession Act, is interpreted in (2007) 1 MLJ 799 [Sheela Devi v. Lal Chand] and it is extracted here under for ready reference: "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 co-parcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship." (emphasis supplied) Explanation 1:- For the purposes of this Section, the interest of a Hindu Mitakshara coparcener shall be deemed to be 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." A bare perusal of the said provisions would clearly show that where the deceased had left him surviving a female relative specified in Class I of the Schedule, his interest in the Mitakshara coparcenary property shall devolve by intestate succession and not by survivorship." 24. I would like to extract here under an excerpt from the famous treatise N.R.Raghavachariar's Hindu Law (Principles and Precedents) Eighth Edition 1987 relating to the scope of Section 6 of the Hindu Succession Act. "7. Proviso: Exception to rule of survivorship in the Mitakshara coparcenary :- This proviso says that so long as there is a female relative specified in clause (1) of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the https://hcservices.ecourts.gov.in/hcservices/ 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. Under the Mitakshara coparcanery as it obtained prior to the Act, no Will left by a coparcener would be valid, the reason being that as between testamentary devolution and devolution by survivorship, the latter took precedence barring the operation of the testamentary disposition. This proviso provides that if any female relative or a male relative claiming through the female relative as specified in clause (1) of the Schedule survives the deceased, then the devolution is under this Act, whether the devolution is testamentary or by intestate succession. The words, "such female relative" found in the proviso to the section refers to a female relative who comes in the 1st class but who is dead but through whom the male relative claims (Ranganathan Chettiar v. Annamalai Mudaliar, 80 L.W.258: (1967) 1 MLJ 389; I.L.R.(1968)1 Mad 685: 1968 Mad.65)". (emphasis supplied) 25. An excerpt from the famous Treatise Mayne's Hindu Law and Usage 16th Edition relating to Section 6 of the Hindu Succession Act would run thus: Position prior to 9.9.2005 "2. Scope:- Prior to the commencement of this Act, codifying the rules of succession, the concept of a Hindu family under Mitakshara school of law was that it was ordinarily joint not only in estate but in food and worship. Coparcenary property, in contra-distinction with the absolute or separate property of an individual coparcener, devolved upon the surviving coparceners in the family, according to the rule