BEFORE THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 16.07.2008 CORAM THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN A.S.No.19 of 1998 Gajendran .. Appellant / 2nd defendant Vs. 1.Smt.Vasantha Bai .. 1st respondent / plaintiff 2.Smt.Suseela .. 2nd Respondents / 1st defendant Prayer:-This appeal has been filed against the decree and judgment dated 06.05.1997 in O.S.No.983 of 1996 on the file of the IV Additional Judge, City Civil Court, Chennai. For Appellant : Mr.B.Thanikachalam, Advocate For Respondents : Mr.R.G.Annamalai, Advocate (For R1) Mr.PA.Kadirvel, Advocate (For R2) JUDGMENT This appeal has been directed against the decree and judgment in O.S.No.983 of 1996 on the file of the IV Additional Judge, City Civil Court, Chennai. The plaintiff has filed the suit for partition and for mesne profits. 2.The averments in the plaint sans irrelevant particulars are as follows:- The plaintiff, first defendant and second defendant are the children of one Saradhambal, who got the plaint schedule property bearing No.109, Bazaar Road, Periapattai, Mambalam Zamin, Saidapet, Madras-15, under a settlement deed dated 05.02.1953. There was a mortgage over the said property, which was to be discharged by the settlee. Mrs.Saradhambal, the settlee under the settlement deed dated 05.02.1953 had discharged the mortgage and she was in possession and enjoyment of the suit property till her death on 12.05.1980. Before her death she had put up the first floor and had rented out the front portion of the suit property to various tenants. She was getting a monthly rent of Rs.250/- from her tenants, besides that she was also getting Rs.75/- per month towards rent from the shop. Totally Saradhambal was getting Rs.600/- per month towards https://hcservices.ecourts.gov.in/hcservices/ rent from her tenants. The first defendant was working as a clerk since 1963 at the Voluntary Health Services Hospital aided by the Government of Tamil Nadu situate in Canal Road Adyar, Madras-113. The first defendant is residing in a tenement measuring 30' x 10' at the suit property since her marriage in March-1966. The second defendant is residing with his family in the 1st floor portion of the front building at the suit property. The plaintiff is a Secondary Grade Teacher since 1968 working in the Municipal Government Middle School at Alandur, Madras-16. From the date of her marriage ie., on 13.06.1976, the plaintiff is residing with her family in the rental premises at Door No.2, Arcot Jambulinga Mudaliar Street, Radha Nagar, Chrompet, Madras-44. The plaintiff and defendants are in joint possession of the suit property while the defendants are collecting the rents. Being one of the three heirs of her mother late Tmt.Saradhambal, the plaintiff is entitled to 1/3rd share in the suit property and the income thereon which are being enjoyed by the defendants. The plaintiff had demanded the defendants in person through relatives and panchayatdars for partition of the suit property and allotment of her 1/3rd share, but the second defendant refused the same. Hence, the plaintiff issued notice dated 14.02.1995 to the defendants. The first defendant in her letter dated 28.07.1995 agreed for partition of the suit property by meates and bounds into three shares and allotment of one share for the plaintiff as well as one share for herself. The second defendant in his reply dated 31.07.1995 had made false allegations against the aspect of partition. The Second Mortgage dated 29.07.1972 incurred for putting up tenements in the property was discharged by Late Saradhambal by the rental income from the suit property. The second defendant was not employed in any public or private establishment at any time and he is doing only milk business. The income from the said business is sufficient only to maintain his family. So the allegation in the reply notice that he had discharged the secured debts in respect of the suit property is untenable. Hence, the suit. 3.The first defendant remained exparte. The second defendant in his written statement would contend that the plaintiff is not in joint possession of the suit property. The Court fee paid under the plaint is not correct. The relationship between the parties are admitted. The allegation that Smt.Lakshmidevi Ammal alone settled the suit property in favour of Saradhambal. Even before the settlement, the above said Lakshmidevi Ammal had borrowed funds on the security of the property by a Registered Mortgage Deed dated 19.01.1953, from one C.Venkata Subbiah Chetty. The settlement deed is subjected to the discharge of the said mortgage. This defendant alone discharged the entire mortgage out of his own earnings. Tmt.Saradhambal had not discharged the mortgage debt. Even before the settlement, the above said Lakshmidevi Ammal had borrowed funds https://hcservices.ecourts.gov.in/hcservices/ on the security of the property by a Registered Mortgage deed dated 19.01.1953, from one C.Venkata Subbiah Chetty. The said settlement deed is subjected to the discharge of the said mortgage. This defendant alone discharged the entire mortgage out of his own earnings. Tmt.Saradhambal was never in possession and enjoyment of the suit property till her life time. Even before her death, the deceased Saradhambal had not made any improvement in the suit property. The second defendant had put up construction in the suit property and let out the same to tenants. The first defendant was paying Rs.100/- per month towards rent to the second defendant. This second defendant alone is in possession and enjoyment of the suit property. This defendant had entered into an agreement to purchase the property, which was later conveyed to the first defendant. The first defendant requested the second defendant to accommodate her to complete the constructions. The plaintiff and the defendants are not in joint possession and enjoyment of the suit property. This defendant alone was maintaining Saradhambal and meeting the family expenses from and out of his milk business. The plaintiff and the first defendant were appropriating their income from the date of their employment for their own benefit. The family was maintained by his mother and later by this defendant. The second defendant had discharged the entire mortgage. At the time of seeing alliance, the plaintiff as well as the first defendant along with the mother had informed the bride's family that this property has been absolutely allotted as and for the share of this defendant in an Oral partition and family arrangement. Under the terms of partition, this defendant being the only son, will be absolutely entitled to the properties of Saradhambal and he is only liable to perform the Varmai and Seermai of the plaintiff and the first defendant, her daughters. From the date of Oral Partition and arrangement, this defendant was put up in possession of the property and has been collecting the rents from the tenants. This defendant has discharged all the encumbrances of the property and was paying the property tax and discharging the public charges, paying electricity consumption charges, and collecting rents, inducting tenants, receiving the rents and carrying out the repairs and exercising all acts of absolute ownership. The entire locality knows about the partition and the allotment of this suit property as and for the share of this defendant. The plaintiff and the first defendant are not entitled to any share in the suit property or income derived from it. At the time of marriage of this defendant in the year 1978, the plaintiff and the first defendant and the late Saradhambal have confirmed the Oral partition and Family Arrangement having allotted in entirety to this defendant, to the grand-father, grand-mother and relatives of the wife of this defendant. The second defendant has performed the marriage of both the sisters and has incurred the marriage expenses and other expenses. The plaintiff https://hcservices.ecourts.gov.in/hcservices/ and the first defendant have been ousted from possession. The first defendant is living in the property as a tenant under this defendant before and after the death of Tmt.Saradhambal. Plaintiff's mother died on 12.05.1980 and from that date onwards, the plaintiff has been in absolute possession and enjoyment of the property. The suit is barred by limitation. From the date of redemption of mortgage in the year 1972, this defendant is in possession and enjoyment of the plaint schedule property, thus prescribed title to the suit property. Nev Vee Vec Clan Nec Precario, the plaintiff and the first defendant are not entitled to claim any right as the heir of late Saradambal. This defendant is also entitled to the right of subrogation and to the cost of improvements and also reimbursement of the marriage expenses of the plaintiff. The suit property is a dwelling house, where the defendants are residing. The plaintiff is not entitled to claim partition under Section 23 of the Hindu Succession Act and section 44 of the Transfer of Property Act. The plaintiff's claim is barred by law. Hence, the suit is liable to be dismissed with costs. 4.On the above pleadings the learned trial Judge has framed as many as 9 issues for trial. The plaintiff has examined herself as P.W.1 besides examining D1, who is none other than her sister, as P.W.2. On the side of the 2nd defendant, the second defendant has examined himself as D.W.1 besides examining D.W.2 & D.W.3. On the side of the plaintiff Ex.A.1 to Ex.A.6 were marked and on the side of the 2nd defendant Ex.B.1 to Ex.B.6 were marked. 5.After scanning the evidence both oral and documentary the learned trial Judge has come to the conclusion that the plaintiff is entitled to a preliminary decree for partition of her 1/3rd share in the plaint schedule property and accordingly decreed the suit, relegating the issue regarding mesne profits to a separate proceedings under Order 28 Rule 12 of CPC. Aggrieved by the findings of the learned trial judge, the second defendant has preferred this appeal. 6.The point for determination in this appeal are as follows:- (1)Whether the suit is hit by Section 23 of the Hindu Succession Act, 1956? (2)Whether the decree and judgment in O.S.No.983 of 1996 on the file of the IV Additional Judge, City Civil Court, Chennai, is liable to be set aside for the reasons stated in the memorandum of appeal? 7.Point No.1 :- Heard the learned counsel Mr.B.Thanikachalam appearing for the appellant and the learned counsel Mr.R.G.Annamalai appearing for the contesting respondent No.2 and considered their respective submissions. https://hcservices.ecourts.gov.in/hcservices/ 7(a) On the basis of a specific pleading in the written statement filed by the second defendant, the learned trial judge has framed the Issue No.8 as follows:- Whether the plaintiff is entitled to the relief of partition under the suit in lieu of section2 3 of the Hindu Succession Act? But while answering the said issue, the learned trial judge has held that as only son of Tmt.Saradhambal, the second defendant is not entitled to the plaint schedule property under Hindu Succession Act since Tmt.Saradhambal, the mother of the plaintiff and defendants died on 12.05.1980. With the above said observation the learned trial judge has come to the conclusion that section 23 of the Hindu Succession Act, 1956, is not a bar for the plaintiff from claiming her 1/3 share in the plaint schedule property. Section 23 of the Hindu Succession Act, 1956, before amendment under Act 39/2005 runs as follows:- "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 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." Admittedly the plaint schedule property is a dwelling house bearing Door No.109, measuring North to South 180 ft and East to West 13 ½ ft at Northern end and 16 ½ ft at the Southern end facing north ajoining Bazaar Road, situate in T.S.No.73, Block No.42, at Bazaar Road, Periapettai, Mambalam Zamin, Saidapet taluk. According to the plaintiff, the plaint schedule property belonged to late Lakshmidevi Ammal, the grand-mother of the plaintiff & defendants, who had executed a settlement deed dated 5.2.1953 in favour of the mother of the plaintiff & defendants viz. Tmt.Saradhambal under Ex.A.3. According to the contesting second defendant, there was two subsisting mortgages in respect of the property settled in favour of Tmt.Saradhambal under Ex.A.3 and that both the mortgages were redeemed only by the second defendant and that from the date of the redemption of those mortgages, he is in possession and enjoyment of the property, and on that score he would claim that he has prescribed title to the property by way of ousters. But there is no evidence on record to show that the second defendant had prescribed title by https://hcservices.ecourts.gov.in/hcservices/ ouster i.e., to show that he is in possession of the property adverse to the interest of either Tmt.Saradhambal or the plaintiff over the statutory period. Admittedly, the suit was filed in the year 1996 and numbered as O.S.No.983 of 1996. So on the date of filing of the suit, Section 23 of the Hindu Succession Act, 1956 was in force. Section 23 of the said Act was omitted by the Hindu Succession Amendment Act, 2005 (Act 39/2005) with effect from 9.9.2005. The impugned decree is dated 6.5.1997. So on the date of decree in O.S.No.983 of 1996 section 23 of the Hindu Succession Act, 1956, was in force and as per Section 23 of the Hindu Succession Act, the plaintiff being a female heir of Tmt.Saradhambal, cannot claim partition of her share in a dwelling house until the male heir, the second defendant in this case chooses to divide his share in the dwelling house. But the female heir is entitled to a right of residence therein. Such is the position of law, the suit filed by one of the daughters of Late.Saradhambal, who got the plaint schedule property under Ex.A.3 plaintiff, as one of the Class-1 heir cannot entitle to claim a share in the plaint schedule property, which is a dwelling house as per section 23 of the Hindu Succession Act, 1956, before Act 39 of 2005 came into force. The cause of action coloumn in the plaint reads that the cause of action for the suit arose on the basis of settlement deed dated 5.2.1953 (Ex.A.3) executed by late Lakshmidevi Ammal in favour of the mother of the plaintiff & defendants viz., Tmt.Saradhambal, who died on 12.5.1980 and also from the date of demand of partition by the plaintiff in respect of the plaint schedule property on 14.07.1995, and also on subsequent dates. Even though the plaintiff is having cause of action to file the suit for partition after the Act 39 of 2005 came into force from 9.9.2005, as class-1 heir of Late Saradhambal, she had no cause of action to file the suit under Section 23 of the Hindu Succession Act, 1956, on the date of filing of the suit. Under such circumstance, I hold on Point No.1 that the suit is not maintainable under Section 23 of the Hindu Succession Act and the suit is hit by the said provision of law. Point No.1 is answered accordingly. 8.Point No.2 :- In view of my findings in the earlier paragraph, I hold on Point No.2 that the decree and judgment in O.S.No.983 of 1996 on the file of the IV Additional Judge, City Civil Court, Chennai, is liable to be set aside. Point No.2 is answered accordingly. 9.In fine, the appeal is allowed and the decree and judgment in O.S.No.983 of 1996 on the file of the IV Additional Judge, City Civil Court, Chennai, is set aside. But the plaintiff is entitled to file a suit for partition in lieu of the Amending Act 39 of 2005. The https://hcservices.ecourts.gov.in/hcservices/ Judgment in this appeal will not form as resjudicata for filing a fresh suit by the plaintiff for partition. The parties are at liberty to agitate their respective rights under the said suit. Sd/- Asst. Registrar /true copy/ Sub Asst. Registrar Ssv To 1) The Registrar, City Civil Court, Chennai. 2) The Section Officer, V.R. Section, High Court, Madras. +1 cc to Mr.PA.Kadirvel, Advocate, SR.No.38224 +1 cc to Mr.B.Thanikachalam, Advocate, SR.No.38074 +1 cc to Mr.R.G.Annamalai, Advocate, SR.No.37877 A.S.No.19 of 1998 MDR (CO) SMK/01.08.08 https://hcservices.ecourts.gov.in/hcservices/