IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:26.09.2008 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA A.S.NOs.786 and 886 Of 1993 and 375 of 1995 1. D.V.Narayana Sah(died) 2. D.N.Kalavathi Bai 3. D.N.Vijayashankar Shah 4. K.Sharmila .. Appellants in A.S.No.786 of 1993 Appellants 2 to 4 brought on record as LRs.of the deceased sole appellant vide order of Court dated 5.3.2007 made in CMP.432 of 2007 vs. 1.A.G.Nagammal Bai 2.D.N.Sundari Bai 3.D.N.Gayathri Bai 4.D.N.Sripriya 5.Minor D.N.Lokesh ... Respondents in A.S.No.786 of 1993 rep.by his mother and natural guardian D.N.Sundari Bai 2nd defendant 1.D.N.Sundari Bai 2.D.N.Gayathri Bai 3.D.N.Sripriya 4.Minor D.N.Lokesh .. Appellants in A.S.No.375 of 1995 vs. 1.A.G.Nagammal Bai 2.D.V.Narayana Sha(died) 3.D.N.Kalavathi Bai 4.D.N.Vijayashankar Sab 5.D.N.Sharmila Bai .. Respondents in A.S.No.375 of 1995 https://hcservices.ecourts.gov.in/hcservices/ RR3 to 5 brought on record as LRs of the deceased 2nd respondent vide order of Court dated 5.7.2007 made in CMP No.1931 of 2007 A.G.Nagamma Bai ... Appellant in A.S.No.886 of 1993 vs. 1.T.V.Narayana Sha(did) 2.T.N.Sundari Bai 3.T.N.Gayathri 4.T.N.Sripriya 5.Minor T.N.Logesh rep.by his mother and natural guardian T.N.Sundari Bai 6.D.N.Kalavathy Bai 7.D.N.Vijayashankar Sab 8.D.K.Sharmila Bai ... Respondents in A.S.No.886 of 1993 RR6 to 8 brought on record as Lrs.of the deceased first respondent vide order of Court dated 23.3.2007 in C.M.P.No.1100 of 2007 Appeals preferred against the judgment and decree dated 7.7.1993 passed in O.S.No.57 of 1989 by the Subordinate Judge, Kancheepuram. For Appellants: Mr.T.V.Ramanujam, Senior counsel in A.S.No.786 of 1993 Mr.T.R.Rajagopalan, Sr.counsel for Mr.Sukumaran in A.S.886/93 Mr.S.V.Jeyaraman, Senior counsel for Mr.S.Raghu in A.S.No.375 of 1995 For Respondents Mr.T.R.Rajagopalan,Sr.counsel for Mr.H.N.Markandan in A.S.786 of 1993 Mr.T.V.Ramanujam Senior counsel in A.S.886 of 1993 and A.S.No.375 of 1995 https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT These appeals are focussed as against the judgement and decree dated 7.7.1993 passed by the Subordinate Judge, Kancheepuram, in O.S.Nos.57 of 1989, which is one for partition. For convenience sake, the parties are referred to here under according to their ligitative status before the trial Court. 2. Niggard and bereft of details, the case of the plaintiff, as stood exposited from the plaint could be portrayed thus: (a) The deceased brothers namely Vengoba Shah and Doma Shah had joint ancestral property. Vengoba Shah and his wife Lakshmi Bai gave birth to three children, namely (i)the plaintiff-Nagammal Bai, (ii) the deceased D1, D.V.Narayana Shah and (iii) the deceased D.V.Nagoo Shah. D2 is the wife of deceased Nagoo Shah and D3 to D5 are the children of Nagoo Shah. (b) The father of the plaintiff Vengoba Shah died in the year 1949 intestate leaving behind his aforesaid wife and children of his legal heirs. Even though during the year 1949, as per the Hindu law which was obtaining at that time, the plaintiff being the daughter of Vengoba shah had no share in the joint property listed in the 'A' Scheduled property nonetheless she had a right to get her marriage solemnised from out of the funds of the joint family. (c) The mother of the plaintiff and her two brothers were entitled to 1/3rd share each in the suit property, consequent upon the death of Vengoba Shah. In fact, the plaintiff's mother Lakshmi Bai, as the widow of Vengoba Shah had limited estate in the suit property and she was in joint possession. (d) After the Hindu Succession Act 1956, having come into vogue, her limited life estate got enlarged as an absolute one and on her death, during the year 1986, her 1/3rd share devolved upon the plaintiff and her two brothers. Accordingly, the plaintiff is entitled to 1/9th share in the suit property. (e) The plaintiff's mother also at the time of her death left behind her silver vessels which were given to her by her mother as described in the 'B' Schedule of the plaint. The plaintiff being her daughter is entitled to 1/3rd share in the sridhana jewels and silver items of her mother. (f) The plaintiff's mother, during her life time, openly declared that all her silver articles and three rows gold chain weighing 15 sovereigns should be taken by the plaintiff only and the plaintiff's brothers should take the diamond ring and three pairs of gold bangles https://hcservices.ecourts.gov.in/hcservices/ equally. Despite the plaintiff having made demands to her brothers for partition, they denied her rights over the 'A' Scheduled properties. Relating to silver articles, they stated that only 14 items of articles were available and the gold chain was kept in the pooja and later on they would give it to her, but nothing transpired thereafter. After issuance of notice, the plaintiff filed the suit seeking partition and for consequential reliefs. 2. Remonstrating and refuting, gainsaying and impugning the allegations/averments in the plaint, D1 filed the written statement, the gist and kernel of it would run thus: (i) The relationship among the parties is an admitted one. The plaintiff's mother Lakshmi Bai was not a co-owner along with her two sons as per law. Lakshmi Bai, the plaintiff's mother, during her life time, had given up her interest in the joint family, under a family arrangement in consideration of having received a sum of Rs.10,000/- from 1). Alli Bai-wife of Doma Shah, the brother of plaintiff's father (2) the second defendant and (3) Nagoo Shah-the husband of D2 and the document dated 24.08.1986 executed by the plaintiff's mother would evidence the same. (ii) The plaintiff's mother during her life time consented for the partition which emerged between the sons of Vengoba Shah on one side and Doma Shah on the other side as per partition deed dated 21.11.1985 relating to the entire joint family property and in that 'A' Scheduled property was allotted to the sons of Vengoba Shah. (iii) The plaintiff's mother was not in joint possession of any portion of the 'A' Scheduled property. In the said partition deed dated 21.11.1985, all the joint properties except the property described in the 'E' Schedule therein, were got divided and the 'E' Scheduled properties therein were kept jointly. Here in the suit properties, the 'E' scheduled properties in the partition deed are also found referred to and in such a case, the suit itself is bad for non-joinder of legal heirs of Doma Shah. The suit framed as such is not tenable. (iv) In fact, out of the said 'E' Scheduled properties referred to in the said partition deed dated 21.11.1985, most of the properties were sold also. In the suit property, very many other properties are found described even though they do not belonged to the joint family at all. The 'B' Scheduled properties of the plaint are not available at all. The plaintiff is not at all entitled to any property. Accordingly, the defendant prayed for the dismissal of the suit. 3. Tersely and briefly the averments as found set out in the written statement of D2 and adopted by D3 to D5, which is mostly in concinnity with the written statement filed by D1 would run thus:- https://hcservices.ecourts.gov.in/hcservices/ Lakshmi Bai was not entitled to any share as set out in the plaint. If at all Lakshmi Bai is entitled to any share it is only to an extent of 1/9th share in the entire estate of the said large joint family. The 'B' Scheduled properties are not in existence at all and Lakshmi Bai never possessed those movable items. The allegations in the plaint relating to gold chain weighing 50 sovereigns are false. Whatever interest Lakshmi Bai had, she relinquished the same after receiving a sum of Rs.10,000/- from Alli Bai-wife of Doma Sha. Accordingly, D2 prayed for dismissal of the suit. 4. The trial Court framed the issues. During trial, the plaintiff examined herself as P.W.1 and Exs.A1 to A16 were marked on her side. On the defendants' side D1 examined himself as D.W.1 and Ex.B1 to B9 were marked on the defendants' side. 5. Ultimately, the trial Court decreed the suit by allotting 1/9th share in some of the items in 'A' Scheduled property. Being aggrieved by and dissatisfied with the judgement and decree of the trial Court, two appeals have been filed, namely, A.S.786 of 1993 by D1 (D1 died during pendency of the appeal and his L.Rs. were brought on record as set out supra) and A.S.No.375 of 1995 by D2 to D5. 6. The gist and kernal of the grounds of appeal as stood exposited from the memorandum of appeal in A.S.No.786 of 1993 filed by D1 would run thus:- (a) The judgement and decree of the trial Court, ignoring Exs.B1 and B2 is erroneous, those documents were not hit by Sections 35 and 49 of the Indian Stamp Act. (b) The original suit was bad for want of adding the legal heirs of deceased Doma Shah as parties to the suit. (c) In view of the plaintiff having challenged the genuineness of the partition deed, in which Doma Shah's was a party, the non impleadment of the LRs of Doma Sha is fatel to the case of the plaintiff. (d) Lakshmi Bai, after receiving a sum of Rs.10,000/-, relinquished her whatever share in the properties and that too it happened after the said partition. She in view of the principle of ouster and abandonment, simply relinquished her right. (e) The plaintiff also had not questioned the various alienations made by the defendants, obviously after knowing that Lakshmi Bai relinquished her right on receipt of Rs.10,000/-. https://hcservices.ecourts.gov.in/hcservices/ Accordingly D1 prayed for setting aside the judgement and decree of the trial Court and for dismissing the original suit. 7. The pith and marrow of the memorandum of appeal filed by D2 to D5(A.S.No.375 of 1993) would reiterate more or less inconsonance with the grounds of appeal filed in A.S.No.786 of 1993. 8. The plaintiff filed A.S.No.886 of 1993 being aggrieved by and dissatisfied with the dismissal of the her claim for partition of the movable properties on the following grounds among others. (a) The trial Court was not justified in rejecting the claim of the plaintiff for partitioning the movable items set out in the 'B' schedule of the plaint and that too ignoring the admission made by D.W.1 (D1) himself. (b) the trial Court was not justified in rejecting the 1/3rd share of the plaintiff in 'B' scheduled properties on the sole ground that she was given sufficient jewels at the time of her marriage. 9. The points for consideration are as to: (i) Whether Lakshmi Bai had women's estate and was in joint possession of the suit property even anterior to the commencement of the Hindu Succession Act 1956? and thereafter whether by virtue of Section 14(1) of the Hindu Succession Act, her such interest over the suit property got enlarged as an absolute one and if so whether during her life time she was entitled to 1/3rd share in the suit properties? (ii) Whether the suit is bad for non-joinder of necessary parties? (iii) Whether Lakshmi Bai validly relinquished her 1/3rd share in the suit property? (iv) Whether Exs.B1 and B2 would prove that Lakshmi Bai relinquished her right over the suit properties? (v) Whether the plaintiff is entitled to suit properties as Class-I heir of the deceased Lakshmi Bai or as a co-parcener within the meaning of the provisions of the Hindu Succession Act 1956? (vi) Whether the 'B' Schedule movable properties are in existence? If so, whether the plaintiff is entitled to a share in them also? https://hcservices.ecourts.gov.in/hcservices/ (vii) Whether the is any infirmity in the judgement and decree of the trial Court. 10. Points (i) & (ii): These two points are taken together for discussion as they are inter-woven and interlinked with each other. 11. The warp and woof of the argument of learned Senior counsel Mr.T.V.Ramanugam for the LRs of D1 would be to the effect that the suit property and other properties originally belonged to the joint family comprised of Vengoba Shah and Doma Shah, both sons of Vengoo Shah; Vengoba Shah died in the year 1949 itself, whereupon his sons, namely, D1-Narayanan Shah and the deceased Nagoo Shah, the propositus of D2 to D5, have been enjoying the suit properties along with Doma Shah; they got partitioned the large joint family properties as per Ex.A1-the partition deed dated 21.11.85; Doma Shah died on 29.4.1986 leaving behind his wife and children and they are not parties to the suit; the fact remains that as per the schedules in Ex.A1, the properties were allotted to the parties therein and the 'E' Scheduled property was reserved as the common property without being partitioned; now some of the items in 'E' Scheduled property also have been added in the original suit, without impleading the LRs of Doma Shah; Vengoba Shah's wife Lakshmi Bai, as on the date of death of Vengoba Shah in the year 1949, was not entitled to any share in the suit property; the plaintiff being the daughter of Vengoba Shah cannot lay claim over the suit property either as a co-parcener or as a legal heir of Lakshmi Bai; the plaintiff, in view of her averments in the plaint, virtually challenging and impugning the very partition as contained in Ex.A1 itself, should have impleaded the legal heirs of Doma Shah; and as such, the suit is bad for non-joinder of necessary parties, but the trial Court failed to take into consideration the said vital point; even for argument sake it is taken that Lakshmi Bai had right over the undivided large joint family property, as per Hindu Women's Rights to Property Act, 1937 (18 of 1937) and that she had her share in the property then the plaintiff claiming under Lakshmi Bai should have included all the joint family properties, which belonged to the joint family comprising of Vengoba Shah and Doma Shan, but she has not done so; even assuming for argument sake that Lakshmi Bai had share in such undivided large joint family property, she relinquished her right after accepting the sum of Rs.10,000/- in a family arrangement, which emerged earlier to Ex.A1 and subsequently Ex.B1 emerged with reference to the factum of the sum of Rs.10,000/- having been paid by the parties to the partition deed Ex.A1 to Lakshmi Bai; it is also a fact as revealed by Ex.B2 dated 24.8.1986 that out of the said sum of Rs.10,000/- a sum of Rs.6,000/- was paid by Lakshmi Bai to the plaintiff; as such, the conduct of Lakshmi Bai and the plaintiff herein would amply and pointedly make the point clear that the plaintiff herein is having no right to claim any share in the suit property. https://hcservices.ecourts.gov.in/hcservices/ 12. The learned Senior counsel Mr.S.V.Jeyaraman appearing for D2 to D5 would put forth his argument in concinnity and inconsonance with the submission made by the learned Senior counsel for D1's LRs, in addition to having elaborated in depth those points. 13. On the contrary, pithily and precisely the argument as advanced by the learned Senior Counsel Mr.T.R.Rajagopalan for the plaintiff would be to the effect that as per the Hindu Women's Right to property Act,1937(18 of 1937) Lakshmi Bai was in joint possession of the joint family properties even anterior to the commencement of the Hindu Succession Act 1956, which right got enlarged by virtue of Section 14(1) of the Hindu Succession Amendment Act in her favour; ignoring her share, the partition effected as per Ex.A1 is not binding on her and her legal heir, namely, the plaintiff; at no point of time Lakshmi Bai relinquished her right over such properties; she did not execute any relinquishment deed or Ex.B1; in fact, the recitals in Ex.B1 would in no way perspicuous of any relinquishment relating to the suit property but it refer to some marriage expenses; the suit is not bad for non-joinder of necessary parties for the reason that the plaintiff being dominus litis is satisfied with the claiming of her right in the suit properties and she is not choosy in getting allotted her share in the properties which were already in the possession and enjoyment of the legal heirs of Doma Shah and the plaintiff is entitled to 1/9th share in the suit properties, so to say consequent upon Vengoba Shah's death Vengoba Shah's half share in the joint family devolved upon his wife Lakshmi Bai and his two sons Narayan Shah and Nagoo Shah and on the death of Lakshmi Bai her 1/3rd share devolved upon her daughter the plaintiff herein and her two sons, namely, Narayan Shah and Nagoo Shah and accordingly, the plaintiff is entitled to 1/9th share in the entire suit property as described in the schedule of the plaint. 14. Alternis vicibus the learned Senior counsel Mr.T.R.Rajagopalan for plaintiff would also develop his argument alternatively that from one other angle also i.e by virtue of the Hindu Succession (Amendment) Act 2005 (39 of 2005) the plaintiff is deemed to be a co-parcener by herself in the coparcenary of Vengoba Shah and accordingly her share cannot be denied. 15. The relationship among the parties is an admitted one. Indubitably and indisputably the suit property and other properties happened to be the joint family properties of the brothers, namely, Vengoba Shah and Doma Shah sons of Vengoo Shah and in such a case it is palpably and pellucidly clear without giving room for any challenge that those two brothers are entitled to half share each. Wherefore it is obvious and axiomatic that the respective heirs of Vengoba Shah and Doma Shah should be satisfied with the respective propositus shares and nothing more. https://hcservices.ecourts.gov.in/hcservices/ 16. Consequent upon Vengoba Shah's death in the year 1949, as per the Hindu Law then obtaining, the status of Vengoba shah's wife Lakshmi Bai was that of a Hindu widow entitled to right as a sharer under the concept of Women's estate and accordingly Lakshmi Bai and her two sons, namely, Narayan Shah and Nagoo Shah were entitled to 1/3rd share each in the half share of Vengoba Shah. At this juncture it is just and necessary to refer to the Hindu Women's Right to Property Act, 1937, an excerpt from Section 3 is extracted here under for ready reference: "3.Devolution of property-(1) When a Hindu governed by the Dayabhaga School of Hindu Law dies intestate leaving any property, and when a Hindu governed by any other school of Hindu law or by customary law dies intestate leavingseparate property, his widow, or if there is more than one widow, all his widows together, shall, subject to the provisions of sub-section (3), be entitled in respect of property in respect of which he dies intestate to the same share as a son: Provided that the widow of a predeceased son shall inherit in like manner as a son if there is no son surviving of such predeceased son, and shall inherit in like manner as a son's son if there is surviving a son or son's son of such predeceased son: Provided further that the same provision shall apply mutatis mutandis to the vidow of a predeceased son of a predeceased son. (2) When a Hindu governed by any school of Hindu law other than the Dayabhaga School or by customary law dies having at the time of his death an interest in a Hindu joint family property, his widow shall, subject to the provisions of sub-section(3), have in the property the same interest as he himself had. (3) Any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu Woman's estate, provided however that she shall have the same right of claiming partition as a male owner. (4) The provisions of this section shall not apply to an estate which by a customary or other rule of succession or by the terms of the grant applicable thereto descends to a single heir or to any property to which the Indian Succession Act, 1925, applies.(emphasis supplied) 17. It is therefore crystal clear that as on the date of death of Vengoba Shah, his wife Lakshmi Bai had 1/3rd share in the half share of Vengoba Shah, as the remaining 2/3rd share devolved upon Vengoba Shah's two sons namely, Narayan Shan and Nagoo Shah. In such a case, it is not https://hcservices.ecourts.gov.in/hcservices/ known as to how it could be contended that Lakshmi Bai had no right at all in the share of Vengoba Shah when he died in the year 1949. Witnesses might lie but the circumstances would not lie. Here the conduct of the defendants themselves in placing reliance on Ex.B1 would speak volumes that as per their own version, they entered into a written partition deed-Ex.A1 without adding Lakshmi Bai as one of the parties to it. But, subsequently realising Lakshmi Bai's interest as per the aforesaid provision of law, allegedly got executed from her Ex.B1 and that they relied upon Ex.B1 as the one evidencing the fact that Lakshmi Bai relinquished her whatever right she had in the large joint family property. However, Ex.B1 is disputed by the plaintiff; the other relevant facts pertaining to it would be discussed infra at the appropriate stage. 18. It is therefore crystal clear that ignoring Lakshmi Bai whatever partition emerged among the other legal heirs of Vengoba Shah and Doma Shah would not bind the plaintiff. Here the plaintiff claims 1/3rd share in the 1/3rd share of Lakshmi Bai in the share of Vengoba Shah. It is therefore explicitly and palpably clear that the plaintiff's contention is well founded. 19. The learned Senior counsel for the defendants would advance his argument that according to the contention of the plaintiff herself the said partition as per Ex.A1 would not bind Lakshmi Bai and in such a case, the plaintiff should have taken steps to implead the legal heirs of Doma Shah for the reason that the share of Lakshmi Bai cannot be carved out from the shares allotted to Narayan Shah and Nagoo Shah only, leaving the shares allotted to Doma Shah in tact. 20. Such an argument cannot be countenanced and upheld as specious one for the reason that the plaintiff is the dominus litis and she is not choosy in getting her share allotted after being located in the items allotted to Doma Shah. Narayan Shah and Nagoo Shah voluntarily and volitionally without any demur agreed to the allotment of properties allotted to Doma Shah and simultaneously they were satisfied with the items of properties representing deceased Vengoba Shah's share having been allotted to them. 21. The learned counsel for the plaintiff would torpedo the argument put forth on the defendants' side by pointedly pointing out that even though the said 'E' Schedule of properties in Ex.A1 are figuring as items 16, 17, 19 to 24 and 75 in Schedule-II of the plaint and also items 1 to 7 in Schedule-III of the plaint, the trial Court rejected the claim for partition in respect of items 3, 4 and 5 in Schedule-III of the plaint, which are covered by Ex.B4 and Ex.B5-the sale deeds executed by Doma Shah, Nagoo Shah and Narayan Shan and the trial Court also dismissed the suit items 5, 6, 10, 13 and 39 to 41 in Schedule-II, which were sold as per Ex.B6 to Ex.B9. It is also pertinent to note that Ex.B6-sale deed was executed by Nagoo Shah and https://hcservices.ecourts.gov.in/hcservices/ Ex.B7, Ex.B8 and Ex.B9 were executed by D2 to D4-the legal heirs of Nagoo Shah. As such, according to learned Senior counsel for the plaintiff non impleadment of the legal heirs of Doma Shah is not fatal to the case of the plaintiff; if at all at the execution stage, after final decree, the heirs of Doma Shah had any claim over those items included in the 'E' schedule of Ex.A1 then in that case the concerned Court could adjudicate on that as to whether the final decree would be operative in respect of those items, in the absence of such necessary parties. 22. Per contra, the learned Senior counsel for the defendants would counter such an argument emanated from the plaintiff's side by projecting and putting forth that vital issues like non-impleadment