IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.11.2006 CORAM: THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN A.S.NO.352 OF 1993 1. Lakshmi(D1) 2. Minor Murugesan(D2) 3. Minor Varadarajan(D3) 4. Minor Nallammal(D4) .. Appellants (Minor 2 to 4 rep by their guardian as mother; 1st appellant) -vs- 1. Susila(Plaintiff) 2. Thanam(D5) 3. Sundaram(D6) .. Respondents This appeal was filed under Section 96 of C.P.C. against the decree and Judgment dated 27.4.1992 and made in O.S.No.85 of 1989 on the file of Subordinate Judge Ariyalur. For appellants : : Mr.R.Rajarajan for Mr. S. Rajan For respondents: : Mr.S.Parthasarathy, Senior Counsel for Mr.M.S.Krishnan-R1 No appearance-RR2 and 3. JUDGMENT This appeal has been preferred against the decree and Judgment in O.S.No.85 of 1989 on the file of the Sub Court, Ariyalur. 2. The averments in the plaint in brief are as follows: The plaintiff,5th defendant, and 6th defendant are the sisters of the deceased Manicka Udayar, who was the husband of the 1st defendant and the father of defendants 2 to 4. Admittedly, the father of the plaintiff, 5th defendant, 6th defendant and the deceased Manicka Udayar, was one Nallathambi Udayar. According to plaintiff, the plaint schedule properties are the ancestral properties of Nallathambi Udayar,the father, who died intestate in the year 1979 leavingbehind him,his wife,the first defendant's husband Manicka Udayar, and his sisters, the plaintiff, 5th defendant and 6th defendant as his legal heirs. The plaintiff's mother also died in the year 1986 Nallathambi Udayar had no necessity to borrow any debts. There was no debt to the Hindu Joint Family on the death of Nallathambi Udayar. The plaintiff being an undivided member of the Joint Family of the deceased Nallathambi Udayar, is entitled to 1/4th share in all the suit properties on the death of her father along with defendants 1 to 6. Since the other defendants have not joined with the plaintiff, as https://hcservices.ecourts.gov.in/hcservices/ co-owner, the plaintiff has come forward with the suit. Every year, plaintiff's brother Manicka Udayar used to give grains and cash for the maintenance of the plaintiff. The plaintiff's brother Manicka Udayar also died intestate on 20.5.1989 leaving behind him, his wife and children, who are defendants 1 and 2 to 4 respectively. After the death of Manicka Udayar, the plaintiff demanded defendants 1 to 4 for a partition. When the plaintiff approached defendants 1 to 4 for partition, due to evil advice of some mischief mongers, defendants 1 to 4 denied the share of the plaintiff in the suit properties by saying that the deceased Manicka Udayar had executed certain documents. Defendants 1 to 4 would contend that on 17.5.1989, Manicka Udayar had executed a registered Will, bequeathing all the suit schedule properties in favour of defendants 1 to 4. The plaintiff obtained a registration copy of the same on 21.6.1989. The alleged Will was not duly executed by the deceased Manicka Udayar. The alleged attestors and scribe of the said document are the henchmen of the 1st defendant. It ought to be a forged and concocted document. Even if, there is any Will, it will not bind the interest of the plaintiff and her sisters in respect of the suit schedule properties. Neither the plaintiff nor her sisters were parties to the said document. Only to deny, the plaintiff's due share in the plaint schedule properties, Defendants 1 to 4 have falsely created a right through the said Will. Defendants 1 to 4 refused to divide the suit property on 22.6.1989. The plaintiff does not want to remain joint with other sharers any more. Hence, the plaintiff has filed the suit for partition of her 1/4th share in the suit properties. 3.Defendants 1 to 4 have filed a joint written statement with the following averments: The description of property given in the plaint Item 1 to the plaint schedule is not correct. It should be Sy.No.32/5. Items 6 to 9, 13 and 14 are not the family properties. They are not liable for partition. Item 15, part I of Item 5 and Item 22 are not liable to be partitioned because they are the separate properties of Manicka Udayar by virtue of sale deed dated 5.6.1974,18.9.1973 and 27.5.1953. The quantum of share claimed by the plaintiff is not correct. It is excessive. The deceased Manicka Udayar has bequeathed his properties under a registered Will dated 17.5.1989 suit items 1 to 5, 10 to 12 and 15 to 22 were conveyed to defendants 1 to 4 under the said Will by Manicka Udayar. It is the last Will executed by Manicka Udayar. The said Will has been registered under law. Hence the suit is liable to be dismissed. 4. 5th defendant remained exparte and 6th defendant has adopted the written statement filed by Defendants 1 to 4. 5. On the above pleadings, learned trial Judge, had framed seven issues and on the basis of oral and documentary evidence let in by both sides, has come to a conclusion that the plaintiff is entitled to 1/6th share in the plaint schedule property except in Item N0.15, Part of Item No.5 and Item No.22 and accordingly passed a preliminary decree. Aggrieved by the findings of the learned trial Judge, the plaintiff has preferred this appeal. 6. Now the points for determination in this appeal are 1) Whether the plaintiff is entitled to 1/4th share in the plaint schedule properties as per Section 6 of the Hindu Succession Act, 1956 ( 30 of 1956) as amended by the Hindu Succession (Amendment) Act,2005(39 of 2005)? https://hcservices.ecourts.gov.in/hcservices/ 2)Whether the plaintiff is entitled to any share in plaint schedule item 15, part of Item 5 and Item 22 to the plaint schedule properties in terms of the decree? 7. Point No.2: While answering Issue No.6, at paragraph 5 of its Judgment, the trial Court has clearly observed that under ExB2, dated 18.9.1973, Manicka Udayar had purchased 1.73 acres of land in S.No.138/19 which is part of plaint schedule Item No.5. Under Ex B2 dated 5.6.1974, Manicka Udayar had purchased 67 cents west of 1.34 cents in S.No.323/15. But that S.No.323/15 was not scheduled to the plaint. It is the claim of the first defendant as D.W.1 that Ex B2 relates to plaint Item No.15 to the plaint schedule property but the plaint Item No.15 relates to S.No.210/15 A measuring 0.27.0 hectares. So as far as Item No.15 is concerned, the first defendant has not proved that Manicka Udayar had taken a sale deed in respect of plaint Item No.15. Ex B3 dated 27.5.1953 relates to plaint schedule Item NO.22. There is an evidence let in by D.W.1 to the effect that only from out of the jewels belonging to her, her husband Manicka Udayar had purchased the properties under Exs B1 to B3. So in respect of plaint schedule part of Item No.5 and also in respect of plaint schedule Item No.22 , the plaintiff cannot claim any share on the ground that they are joint family properties. Nallathambi Udayar, the father of the plaintiff, died in the year 1979. Exs B1 to B3 were taken even before the death of Nallathambi Udayar. The fact that those Exs B1 to B3 documents were not taken in the name of Nallathambi Udayar but in the name of Manicka Udayar had itself will go to show that the properties purchased under Exs B1 to B3 are self acquired properties of Manicka Udayar. As far as Item No.15 is concerned, Ex B2 does not relate to the plaint schedule Item No.15, consist of S.No.210/15 A measuring 0.27.0 hectares. So the plaintiff cannot get any share in part of Item No.5 and Item No.22 to the plaint schedule property. But the plaintiff is entitled to her due share in plaint schedule Item No.15 ie., S.No.210/15 A measuring 0.27.0 hectares,since Ex B2 does not relate to the said plaint schedule property Item No.15 relating to S.No.210/15A. Hence I hold on the point No.2 that the plaintiff is entitled to a preliminary decree for partition for her due share which is to be declared in point No.1 hereunder in respect of plaint Item No.15 to the suit property and other properties except in part of item No.5 and item No.22 to the plaint schedule properties. 8. Point No.1: The plaintiff is one of the daughters of the deceased Nallathambi Udayar. According to the plaintiff, the plaint schedule properties are the Hindu Joint Family Properties of Nallathambi Udayar and under Section 6 of the Hindu Succession Act, 1956( 30 of 1956) as amended by the Hindu Succession (Amendment) Act,2005(39 of 2005), the plaintiff would claim that she is entitled to 1/4th share in the plaint schedule properties, since there was no partition among the co sharers of the Hindu Joint Family of Nallathambi Udayar, till his death. Even though, the defendants would claim right under the alleged "Will" dated 17.5.1989 said to have been executed by Manicka Udayar in favour of his wife. 1st defendant and his minor sons defendants 2 to 4, the said "Will" Ex B4 was not proved by examining at least one of the attestors to Ex B4 "Will". Ex B4 was not proved as contemplated under the provisions under Section 68 of the Evidence Act or under Sections 66 and 69 of the Indian Succession Act. So under Ex B4 "Will", the defendants 2 and 3 cannot claim any right as correctly held by https://hcservices.ecourts.gov.in/hcservices/ the learned trial Judge in Issue Nos.3 and 4 that the beneficiaries under Ex B4 "Will" cannot claim any right in respect of the suit properties because Ex B4 was not proved before the trial Court. 9. The plaintiff relying on Section 6 of the Hindu Succession Act,1956(30 of 1956) as amended by the Hindu Succession (Amendment) Act,2005 (39 of 2005),would claim that after the said amendment to the Hindu Succession Act in the year 2005, by birth, the plaintiff being a daughter of Nallathambi Udayar will be entitled to an equal share in the Hindu Joint Family properties of Nallathambi Udayar as that of the son of Nallathambi Udayar viz., Manicka Udayar. According to the plaintiff, the other two daughters of Nallathambi Udayar , viz., Defendants 5 and 6 are also entitled to an equal share in the Hindu Joint Family Property of Nallathambi Udayar. Section 6 of the Hindu Succession Act, 1956( 30 of 1956) as amended by the Hindu Succession(Amendment) Act,2005(39 of 2005) runs as follows: "(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 the20th 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 or intestate succession, as the case may be, under this Act and not by 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 https://hcservices.ecourts.gov.in/hcservices/ 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. 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)". 10)The learned counsel appearing for the defendants/appellants would contend that after the death of Nallathambi Udayar, his son Manicka Udayar, the husband of the first defendant, also died on 20.5.1989 and till his death, the plaintiff has not claimed any share in the Hindu https://hcservices.ecourts.gov.in/hcservices/ Joint Family Property. She had filed a suit in the year 1989, soon after the death of Manicka Udayar. The learned counsel relying on a decision reported in Alamelu Ammal and others-vs- Tamizh Chelvi and others(2004)3 M.L.J.620) would contend that notwithstanding the fact that the properties had devolved on the heirs under Sections 6 and 8 of the Hindu Succession Act, prior to the commencement of Section 29 A of the said Act as a coparcener , the plaintiff is entitled to a share in the coparcenery property. The short facts of the case is that one Krishna Reddiar ( Senior)had a son, by name Govindasamy Reddiar and a daughter, by name Rangammal. His wife was Venkattammal and she died in the year 1953. Govindasamy Reddiar, son of Krishna Reddiar(Senior), died on 19.4.1964. Govindasamy Reddiar had one son, by name, Krishna Reddiar(Junior) and two daughters, namely, Rangammal and Pappathi. The wife of Krishna Reddiar (Junior) is one Alamelu ammal, who is the first defendant in the suit. Krishna Reddiar(junior)'s sister Rangammal had a daughter, by name, Alamelu ammal and she is the fifth defendant in the suit. Krishna Reddiar (Junior)'s another sister Pappathi Ammal had a son, Devan and he is the sixth defendant. Krishna Reddiar(Junior) had a son, by name, Subramaniam and two daughters, namely, Rathinam(2nd defendant) and Balaji alias Balammal(3rd defendant). Subramaniam son of Krishna Reddiar(Junior) died on 15.2.1986 leaving behind his wife, Tamilselvi and daughter,Krishna Devi. The wife and the daughter of Subramaniam are the plaintiffs in the suit. Govindasamy Reddiar, father of Krishna Reddiar(Junior) had a sister, by name, Rangammal and she died on 14.8.1957. She had a son, by name, Ellappa Reddiar who is the fourth defendant and his son Govindarajan is the seventh defendant. It is also relevant to mention her that Alamelu ammal, first defendant is the daughter of Rangammal, who is the daughter of Krishna Reddiar(Senior) and Krishna Reddiar(Junior) had married his paternal aunt's daughter, Alamelu ammal. For the purpose of convenience, we set out hereunder the genelogy tree of the family. Krishna Reddiar(Senior) | Venkattammal | |-------------------------| Govindasamy Rangammal | | Chinnammal ---------------------- | | | |-----------------|------------------|Alamelu(D1) Ellappa Reddiar(D-4) Krishna Reddiar Rangammal Pappathi | |-----------------|-------------| Govindarajan(D-7) Alamelu(D-1) Alamelu(D-5) Devan(D-6) |------------------|-----------------|--------- Subramaniam Rathinam Balaji | (D-2) (D-3) Tamilselvi(P1) | Krishna Devi(P2) The plaintiffs have filed the suit for partition claiming 5/8th share in the suit properties and also for delivery of possession and mesne profits and other incidental reliefs. The plaintiff claims a share in the Hindu Joint Family as that of a son under Section 29 A of the Hindu Succession Act which was inserted by the Tamil Nadu Act 1 of 1990 with effect from https://hcservices.ecourts.gov.in/hcservices/ 25.3.1989. It has been held in the said appeal that an unmarried daughter does not become a coparcener only from the date of insertion of Section 29 A of the Hindu Succession Act but she becomes a coparcener by virtue of her birth in the family of a Hindu. It has been further held by a Division Bench that Section 29 A of the Hindu Succession Act gives a special statutory right to daughters in a Hindu undivided family and a daughter of a Hindu, if not married before the commencement of the Hindu Succession (Tamil Nadu Amendment) Act 1989, is treated as a coparcener subject to certain conditions contained in Section 29 A of the Hindu Succession Act, but her rights are equal to that of a son in the Hindu family and she is regarded as a coparcener with a right by birth in the family properties. Section 29-A begins with the non obstante Clause, notwithstanding anything contained in Sec.6 of this Act' which clearly indicates that the provisions of Sec.29-A would override the provisions of Sec. 6 of the Hindu Succession Act............ We are of the view that Sec.29-A is a special provision giving a statutory right to a daughter treating her as a coparcener in the family and if such right by birth is given to the daughter, it must mean that she gets the right by birth in the family properties from the date of her birth and it is not a right that would accrue only on the commencement of the Tamil Nadu Amendment Act,1989. As already held by us, though Sec.29-A of the Hindu Succession Act is prospective in operation, it takes note of the events that happened prior to the insertion of Sec.29-A of the Hindu Succession Act in its operation. Therefore, we are of the view that if any alienation or gift of immovable property was made by the sole surviving coparcener or the Kartha of the family during the interregnum period from the date of birth of a daughter till the date of commencement of the Tamil Nadu Amendment Act, 1989, such an alienation or gift of the family property is liable to be questioned by an unmarried daughter as if she is a coparcener, but we are of the view that the ground of challenge would be limited and the Court would be considering the question of validity of any alienation or transfer made by the said coparcener in the light of the provisions of Sec.29-A of the Act that the daughter became a coparcener only by virtue of that Section which was inserted subsequent to such alienation or transfer. After referring to S.Sai Reddy .v.S.Narayana Reddy (1991)3 S.C.C.647, M.Shanmugha Udayar.v.Sivanandam (1993)2 M.L.J., 617: AIR 1994 Mad.123, Kokila.v.Swathanthira and others (2004) 3 L.W.60,the Division Bench of this Court has observed further as follows: "On the difference of opinion between two learned Judges has held that Sec.29-A of the Hindu Succession Act is a deviation from Sec.6 of the said Act and an unmarried daughter can, under Sec.29-A of the Act, claim right equal to a son in spite of specific devolution of interest in coparcenary properties as contained in Sec.6 of the Act. We are of the view that though the properties devolved on the plaintiffs as well as the mother of Subramaniam, first defendant in the suit and vested in them in the year 1986 on the death of Subramaniam since partition in the family had not taken place by metes and bounds as provided under Clause (v) of Sec.29-A of the Hindu Succession Act, the rights devolved on the family members would get altered and the second plaintiff would be entitled to claim her share as a coparcener in the coparcenary properties left by Subramaniam as if she had a right by birth in the coparcenary properties. We are of the https://hcservices.ecourts.gov.in/hcservices/ view that any other construction would defeat the avowed purpose and object of Sec.29-A of the Hindu Succession Act as the legislature has indicated that Sec.29-A of the Act has excepted from its operation only two cases, namely, where partition was effected prior to the commencement of the Hindu Succession (Tamil Nadu Amendment) Act,1989 or where the daughter got married before the commencement of the said Amendment Act and in all other cases the necessary implication is Sec.29-A of the Hindu Succession Act would apply and consequently, the shares,if any, devolved on the members of the family under Sec.6 of the Hindu Succession Act would get altered and their rights in the family properties have to be redetermined by applying the provisions of Sec.29-A of the Hindu Succession Act and ultimately, second plaintiff was declared 1/8th share in the coparcenary properties held by Sivasubramaniam. It is clear from the above said dictum that to get benefits under Section 29-A of the Hindu Succession Act, the daughter, who claims the right under Section 29-A of the Hindu Succession Act shall be unmarried at the time, when the Hindu Succession Act 1989,(Tamil Nadu Amendment Act 1989) came into force or there shall be a partition in the Hindu Joint Family before 1989 ie., before the Hindu Succession Act (Tamil Nadu Amendment Act) came into force. This suit was filed in the year 1989. It is seen from the plaint that the plaintiff Susila got married to one Kulandaivelu Udayar even on the date of filing of the suit as seen from the long cause title to the plaint. So the above said dictum will not be applicable to the present facts of the case. 11. The learned counsel appearing for the appellants relying on a decision reported in Eramma-v- Veerupana and others(AIR 1966 Supreme Court 1879(V 53 C 380) and contended that Sections 6 and 8 of the Hindu Succession Act are not retrospective in operation and where a male Hindu died before the Act came into force ie., where succession opened before the Act, Section 8 will have no application. The learned counsel would contend that even before 1989 Amendment Act came into force, Nallathambi Udayar, his widow, and his son Manicka Udayar died and hence the learned counsel would contend that the Act has no retrospective effect only prospective and that till the filing of the suit, there was no partition between the co sharers in the Joint Family of Nallathambi Udayar and hence the learned counsel would contend that the plaintiff cannot claim 1/4th share in the suit property. The short facts of the above