IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 05.08.2009 Coram THE HONOURABLE MR.JUSTICE S. RAJESWARAN A.S.No.272 of 2008 S.Seshachalam ..Appellant/Plaintiff Vs. 1. S.Deenadayalan 2. V.Kanakavalli 3. U.Manonmani 4. S.Raghunathan 5. S.Umapathi 6. S.Harikrishnan 7. S.Sivakumar 8. Thilakavathi ..Respondents/Defendants This Appeal has been filed under Sec.96 r/w Order 41, Rule 1 of C.P.C. against the judgment and decree passed by the VI Additional Judge, City Civil Court at Chennai in O.S.No.1444 of 2004 dated 5.10.2007. For Appellant : M/s.J.Sethuraman & T.Rajasekaran For Respondent-2 : Mr.R.Parthasarathy for Mr.Satish Prasaran For Respondents 3 to 6 & 8 : Mr.J.Krishnamachary JUDGMENT This Appeal is filed against the judgment and decree passed by the VI Additional Judge, City Civil Court at Chennai in O.S.No.1444 of 2004 dated 5.10.2007. 2. The plaintiff in O.S.No.1444 of 2004 on the file of the VI Additional City Civil Court is the Appellant before this Court. He is aggrieved by the judgment and decree of the trial Court granting 1/5th share in the suit schedule property to the plaintiff, 1/5th share each to defendants 1 to 3 and 1/5th share in total to defendants 4 to 8. https://hcservices.ecourts.gov.in/hcservices/ 3. The facts which are leading to the filing of the above Appeal are as follows: 4. For the sake of convenience, the parties are referred to as per their ranking in the suit. 5. The plaintiff and the first defendant are brothers. Defendants 2 and 3 are their sisters. The mother of defendants 4 to 8 was also a sister of the plaintiff and defendants 1 to 3. 6. The plaintiff filed O.S.No.1444 of 2004 for partition of 2/5th share of the plaintiff in the suit schedule property which is land and building admeasuring about *4251 sq.ft. bearing new Door No.129, Old Door No.51, Tana Street, Purasawalkkam, Chennai 600 007. Though the plaintiff claimed 2/5th share initially in the amended plaint filed by him, the plaintiff prayed for a judgment and decree for partition of 1/2 share in the suit schedule property. 7. According to the plaintiff, defendants 1 to 3, himself and the mother of defendants 4 to 8 are the sons and daughters of late Thiru K.Somasundaram Chettiyar. The suit schedule property belonged to the forefathers of their father and the same was acquired by him through inheritence. Their father, Thiru Somasundaram Chettiyar was living in the suit schedule property along with the plaintiff, defendants 1 to 3 and the mother of defendants 4 to 8. The daughters lived there till their marriage. Thiru Somasundaram Chettiyar was acting as the Karta of Hindu undivided family, consisting of himself, the first defendant and the plaintiff. Thiru Somasundaram Chettiyar passed away on 31.8.1965 leaving his wife Tmt.Tirupurasundari Ammal, the defendants 1 to 3, the mother of defendants 4 to 8 and the plaintiff as the legal heirs. Tmt. Tirupurasundari Ammal lived in the suit schedule property till her death and she died on 8.1.1998. After her death, the plaintiff and the first defendant continued to be in possession of the suit schedule property. 8. As it became impossible for the plaintiff to live jointly in the suit schedule property, he requested the first defendant on several occasions to effect partition of the property by metes and bounds. But, the first defendant evaded the plaintiff and he was only interested in collecting the rent from the several portions which were let out. He was also not sharing rental income or showing the accounts for the same. Hence, he filed a suit in *O.S.No.410 of 1999 on the file of the 17th Assistant City Civil Court for the partition of the plaint schedule property. The suit was dismissed on the ground that the other legal heirs of late Somasundaram chettiyar were not impleaded as parties in the suit. Therefore, the plaintiff issued legal notice to the other legal heirs calling upon them to come for an amicable settlement and to partition the suit schedule property. As the defendants could not come forward to do so, the plaintiff filed the above suit for the abovesaid relief. https://hcservices.ecourts.gov.in/hcservices/ 9. It is the case of the plaintiff that after the death of his father and mother, the plaintiff and the first defendant are entitled to 1/2 share each and hence, he claimed his 1/2 share in the suit schedule property. 10. The first defendant, in his written statement, admitted the relationship of the parties to the suit. He also admitted that the property was acquired by their father by inheritance. He pointed out that challenging the dismissal of the suit filed by the plaintiff in *O.S.No.410 of 1999, the plaintiff filed an appeal in A.S.No.98 of 2004 on the file of the VI Additional City Civil Court and the same is pending. In view of the pendency of A.S.No.98 of 2004, the present suit is barred by resjudicata. However, the first defendant stated that he is entitled to 1/2 share in the suit property. In the additional written statement filed by the first defendant, he contended that he is entitled to half share in the suit property and the defendants 2 to 8 are not entitled to any share at all. 11. In the written statement filed by the second defendant, she stated that she was not aware of the provisions of the suit filed by the plaintiff and she contended that as a legal heir of her father, she is not only entitled to 1/5th share in the suit schedule property, but also for the mesne profits. In such circumstances, the second defendant stated that she has no objection in partitioning the suit property by metes and bounds provided that, she gets 1/5th share. 12. In the additional written statement filed by the second defendant, she stated that the Hindu Succession (Amendment) Act came into force on 9.2.2005 and as per the new amendment, she is entitled to equal share in the suit schedule property in all her rights as a Coparcener. Hence, she reiterated her claim that she is entitled to 1/5th share as a matter of right since she is also a Coparcener as per the Hindu Succession (Amendment) Act. 13. A similar written statement has been filed by the third defendant claiming 1/5th share and also mesne profits. She has also no objection for partition of the suit property provided she gets her lawful share together with mesne profits. 14. The defendants 4, and 5 to 8 in their written statement stated that after the demise of Thiru Somasundaram Chettiyar, the property devolves upon his legal heirs namely the plaintiff, defendants 1 to 3 and the mother of defendants 4 to 8. Since the mother of defendants 4 to 8 is no more, the defendants 4 to 8 are jointly entitled to 1/5th share. 15. On the basis of the above pleadings, the following issues were framed by the trial Court: https://hcservices.ecourts.gov.in/hcservices/ 1. Whether the suit property is the ancestral property of the family of the plaintiff ? 2. Whether the plaintiff is entitled to 2/5th share in the suit property ? 3. Whether the first defendant is liable to pay mesne profits or any such damages ? 4. To what other relief the plaintiff is entitled to ? 16. The following additional issue was also framed by the trial Court: Whether the plaintiff is entitled to half share ? 17. On the side of the plaintiff, the plaintiff was examined as P.W.1 and Exhibits A1 to A13 were marked. On the side of the defendants, the first defendant was examined as D.W.1 and exhibits B1 to B4 were marked. 18. While considering all the issues together, the trial court found that the suit property is the ancestral property of Thiru Somasundaram Chettiyar. After adverting to the provisions of Amendment Act 2005, and in particular, the amendment made to Sec.6 of the Hindu Succession (Amendment) Act, the trial court held that the daughters are also entitled to equal share and the plaintiff is not entitled to half share in the suit schedule property. The trial Court further rendered a finding that the plaintiff, defendants 1 to 3 and the mother of defendants 4 to 8 are equally entitled to get 1/5th share. Consequently, the trial court held that the plaintiff and defendants 1 to 3 are entitled to get 1/5th share each and defendants 4 to 8 are jointly entitled to get 1/5th share. In so far as the mesne profits claimed by the parties are concerned, the same was rejected by the trial court. 19. Aggrieved by the judgment and decree of the trial court, dated 5.10.2007, made in O.S.No.1444 of 2004, in so far as granting only 1/5th share, the plaintiff filed the above appeal seeking 6/5th share each to the appellant and to the first respondent and 1/15th share each to respondents 2 and 3 and deceased Chandrammal whose legal heirs are respondents 4 to 8. 20. Heard the learned counsel for the plaintiff/ appellant, the learned counsel for the second defendant/ second respondent and the learned counsel for the defendants 3 to 6/respondents 3 to 6 and 8. The first defendant/first respondent appeared in person and he was also heard by this court. https://hcservices.ecourts.gov.in/hcservices/ 21. The learned counsel for the plaintiff/appellant submits that the suit property is the ancestral property and on the birth of the plaintiff and the first defendant they were entitled to get a share each with their father and therefore, all the three male members of their family are entitled to 1/3rd share. On the death of Thiru Somasundaram Chettiyar, on 31.8.1965, the Succession opened for his 1/3rd share and therefore, the unamended Sec.6 of the Hindu Succession Act 1956 alone would govern the field. Accordingly, the 1/3rd share of the deceased Somasundaram Chettiyar would devolve on all the legal heirs namely the plaintiff, defendants 1 to 3 and the mother of defendants 4 to 8 equally. Therefore, according to the learned counsel for the appellant, both the plaintiff and the first defendant are entitled to 1/15th share in that 1/3rd share and adding 1/15th share to their 1/3rd share, both of them are entitled to 6/15th share and the three daughters are entitled to 1/15th share. The learned counsel further urged that the Amendment Act came into force with effect from 20.12.2004 and therefore, it would not apply to the present case. He further contended that since the plaintiff's father passed away on 31.08.1965, the disposition had taken place by operation of law and therefore, the daughters are not entitled to equal share as claimed by them. In support of his submissions, the learned counsel for the plaintiff/appellant relied on the following decisions: 1. 2007(1) M.L.J. 797 (SC) (Sheela Devi and others Vs Lal Chand and another) (2006(8) SCC 581) 2. A.I.R. 2008 MDS 250 (Smt.Bagirathi & others Vs S.Manivanan & another) (2008(3) TLNJ 416 (Civil)) 3. 2008(4) C.T.C. 773 (Valliammal Vs Muniyappan and others) 4. (1997)10 SCC 684 (Sathyaprema Manjunatha Gowda (Smt) vs Controller of Estate Duty, Karnataka) 5. 2006 A.I.R. SCW 5063 (anar Devi & others Vs Parmeshwari Devi & others) 6. 2007(4) T.L.N.J. 535 (Angammal & another Vs C.Sellamuthu & another) 7. 2007(4) T.L.N.J. 237 (Civil) (Nachayal Vs Pongiannan & 11 others) 8. Vol.69 1968 ITR 342 (T.S.Rajam Vs Controller of Estate Duty, Madras 9. A.I.R. 1977 (SC) 500 (Madras Refineries Ltd. Vs Chief Controlling Revenue Authority, Board of Revenue, Madras) https://hcservices.ecourts.gov.in/hcservices/ 22. Per contra, the learned counsel for the second respondent would contend that the Hindu Succession (amended) Act 2005 came into force on 9.9.2005 during the pendency of the suit and even before passing of the preliminary decree. As per the amendment, the daughters of a co-parcener are also given the same status equally to that of the sons. According to the learned counsel for the second respondent, the newly amended Sec.6(1) of the Hindu Succession Act would apply to the present case as no disposition, alienation or partition of the property took place before 20.12.2004. He pointed out that the partition contemplated in that section is actual partition by execution of deed of partition or partition effected by a decree of court. Therefore, the learned counsel submits that there is no question of considering notional or deemed partition. It is his contention that only when actual partition has taken place prior to 20.12.2004, the amended Act would not apply and in this case, as there was no such partition prior to 20.12.2004, the trial court has correctly held that the daughters are also entitled to equal shares. The learned counsel further urged that the Hindu Succession (Amendment) Act is a beneficial legislation and therefore, the same is to be liberally interpreted to confer the benefits on the beneficiary that is women. 23. In support of his submissions, the learned counsel for the second respondent relied on the following decisions: 1. (1991)3 SCC 647 (S.Sai Reddy Vs S.Narayana Reddy and others) 2. 2007(3) M.L.J. 1029 (G.Sekar Vs Geetha and 7 others) 3. 2009(2) C.T.C. 130 (M.Revathi Vs R.Alamelu and 6 others) 4. 1970(2) SCC 390 (Goli Eswariah Vs Commissioner of Gift Tax, Andhra Pradesh) 5. 2009(2) C.T.C. 324 (S.N.Mathur Vs Board of Revenue and others) 6. 2005(6) SCC 622 (Vellikannu Vs R.Singaperumal and another) 7. 2004(3) M.L.J. 620 (Alamelu Ammal and others Vs Tamizh Chelvi and others) 8. 1996(6) SCC 44 (Union of India and others Vs Dhanwanti Devi and others) 24. The learned counsel for the respondents 3 to 6 and 8 while adopting the arguments made by the learned counsel for the second respondent, submitted that the amending provision is a beneficial legislation to remove the ineqaulity between the two sexes. Therefore, he contends that the same is to be interpreted in such a https://hcservices.ecourts.gov.in/hcservices/ way that it gives benefit to women rather than depriving the property to them. Hence, he prayed for the dismissal of the appeal. 25. The first defendant/first respondent appeared in person and submitted that he is adopting the arguments of his brother, the appellant herein and prays for allowing the appeal in so far as the allotment of shares to him and his brother by the trial court. 26. I have considered carefully the submissions made on behalf of the parties. I have also gone through the entire documents available on record. 27. Now, it is not in dispute that the suit schedule property is an ancestral property of Thiru Somasundaram Chettiyar who died intestate on 31.8.1965. It is also an admitted fact that his wife Tmt.Tirupurasundari Ammal breathed her last on 8.01.1998. It is also an admitted fact that the plaintiff and the defendants are the two sons of their deceased parents and defendants 2 and 3 and the mother of defendants 4 to 8 are the daughters of their parents. If that being so, the only question that arises for consideration is whether the trial court has correctly decided the shares allotted to the plaintiff and the defendants by relying on the provision of the Amended Central Act 39 of 2005. 28. Before proceeding further, it is useful to refer to the Sec.6 of the unamended Hindu Succession Act, 1956 "6. Devolution of interest in coparcenary property- (1) 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 purpose of this section, the interest of a Hindu Mitakhara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the https://hcservices.ecourts.gov.in/hcservices/ 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 provision 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." 29. After amendment, the very same section, now, reads as under: "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 coparcerner; 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 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 https://hcservices.ecourts.gov.in/hcservices/ 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) After the commencement of the Hindu Succession (Amendment) Act, 2005, no Court shall recognise any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son,grandson or great-grandson 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 this sub- section shall affect- (a) the right of any creditor to proceed against the son, grandson or great-grandson, 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. https://hcservices.ecourts.gov.in/hcservices/ Explanation: For the purposes of clause (a), the expression "son", "grandson" or "great-grandson" shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005. (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." 30. According to the plaintiff and the first defendant, the daughters i.e. their sisters could not take advantage of the amended Act as their father died on 31.8.1965 and on that day, the succession has opened and the suit property attracted disposition by operation of law. Therefore, it is their case that when their father passed away as early as on 31.08.1965, it is not open to the daughters to rely on the amendment Act to contend that they are entitled to a share in the property as they have become coparceners in their own right in the same manner as the sons. This was sought to be disproved by the daughters by contending that there was no disposition or alienation including any partition or testimony disposition of the property in this case before 20.12.2004 and therefore, the proviso to Sec.6(1) will not get attracted. It is their further case that the partition contemplated in Sec.6(1) as defined in sub clause 5, according to which, partition means any partition made by execution of a Deed or partition effected by a decree of court. Since there was no such partition in the present case, it is their case that the new Act would apply and the trial court has correctly held that they are entitled to equal share in their own rights as coparceners. 31. Before considering the rival contentions, let me consider the decisions relied on by the counsel appearing for the parties. 32. In (2007)1 M.L.J. 797 (SC) (cited supra), the Hon'ble Supreme Court observed as under: "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 https://hcservices.ecourts.gov.in/hcservices/ 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." 33. It is no doubt true that the Hon'ble Supreme Court in the above decision has clearly observed that the Amendment Act 2005 would have no application in that case as the Succession having opened in 1989 when the father in that case passed away. 34. This decision was very much relied on by the learned counsel for the plaintiff/appellant as in this case also, the father passed away as early as on 31.08.1965 and therefore, the succession has already opened in 1965 itself. 35. Per contra, the learned counsel for the second respondent