Case: Mangammal and Ors.  Vs. T.B. Raju and Ors

(a) The case of the Appellants, in a nutshell, is that the Appellants herein are the daughters of Late Shri T.G. Basuvan (died on 29.12.1979) and Late Smt. Sundari (died on 22.07.1989) whereas Respondent No. 1 is the brother of the Appellants herein. Late T.G. Basuvan left three properties consisting of agriculture land (Item Nos. 1 & 2) and dwelling house (Item No. 3)(b) Later on, due to the irresponsible behaviour of Respondent No. 1, suit properties at Item Nos. 1 and 2 were leased out to Respondent Nos. 2 to 4 herein during the lifetime of the mother of the Appellants herein(c) During the lease period, the mother of the Appellants died. On the expiry of said lease deed, the Appellants herein through legal notice approached the Respondent Nos. 2 to 4 to deliver the vacant possession of Item Nos. 1 and 2. In reply, it has been stated that the lands were sold to them by Defendant No. 1(d) Being aggrieved, the Appellants instituted a suit being O.S. No. 202 of 2003 praying, inter-alia, for the partition and separate possession of the suit properties which consisted of three items, namely, agriculture land (Item Nos. 1 and 2) and building site with constructed building (Item No. 3) and arrayed the brother as Defendant No. 1 and lessees/subsequent buyers as Defendant Nos. 2 to 4. The Appellants herein were the Plaintiffs in the original suit(e) The trial Court, after hearing the suit at length, dismissed the same, vide judgment dated 28.09.2004 while holding, inter alia, that the plaint is the creature of the Defendant No. 1 and the Plaintiffs, who being the puppets in the hands of Defendant No. 1, are not entitled to any partition(f) Being dissatisfied, the Appellants took the matter before the District Judge, Udhagamandalam. Learned District Judge, vide judgment dated 14.12.2005, dismissed the appeal while upholding the decision of the trial court(g) Feeling aggrieved with the decision, the Appellants herein preferred a Second Appeal being No. 780 of 2006 before the High Court of Judicature at Madras. Learned single Judge of the High Court, vide order dated 18.09.2006, dismissed the appeal at the admission stage itself(h) Consequently, this appeal has been filed before this Court by way of special leave.

Reasoning:
If the answer to this question is affirmative then only further determination of dispute would arise. Prior to the amendment, it was only the male who would have been coparcener and entitled to claim the partition and share from the joint family property. On the other hand, daughter did not have any right to partition and to claim share in the ancestral property since she was not a coparcener. At the most, at the time of partition, she could only ask for reasonable maintenance and marriage expenses9. To cut a long story short, it is undisputed fact that Late T.G. Basuvan, father of the Appellants, had only ancestral properties and he did not left behind any self acquired properties. On a plain reading of the newly added provision i.e., Section 29-A of the Act, it is evident that, inter-alia, daughter of a coparcener ought not to have been married at the time of commencement of the amendment of 1989. In other words, only un-married daughter of a coparcener is entitled to claim partition in the Hindu Joint Family Property. In the instant case, it is admitted position that both the Appellants, namely, Mangammal, got married in the year 1981 and Indira, got married in or about 1984 i.e., prior to the commencement of the 1989 amendment. Therefore, in view of Clause (iv) of the Section 29-A of the Hindu Succession (Tamil Nadu Amendment) Act, 1989, Appellants could not institute the suit for partition and separate possession at first instance as they were not the coparcenersIn such circumstances, in our view, Prakash and Ors. (supra), would still hold precedent on the issue of death of coparcener for the purpose of right of daughter in ancestral property. Shortly put, only living daughters of living coparceners would be entitled to claim a share in the ancestral property11. Hence, without touching any other aspect in the present case, we are of the view that the Appellants were not the coparceners in the Hindu Joint Family Property in view of the 1989 amendment, hence, they had not been entitled to claim partition and separate possession at the very first instance. At the most, they could claim maintenance and marriage expenses if situation warranted12. However, as appears from the record of the case and also in view of the contention of the parties, the coparcener property in the hand of Late T.G. Basuvan got divided between him and his son T.B. Raju-Respondent No. 1. In such partition, Late T.G. Basuvan got 1/2 share and T.B. Raju also got 1/2 share. Now the property left in the hand of Late T.G. Basuvan would be his separate property14. At this juncture, we would like to make it clear that any sale which made to Respondent Nos. 2 & 3 in pursuance of two sale deeds dated 03.04.1996 and 24.08.1998 respectively shall not be disturbed anymore. In lieu of the same, the Appellants shall be entitled to their legitimate share, if any, which belonged to them in such properties and which had been sold through sale deeds from Respondent No. 1 by way of money or some other property of the same amount. The price of the properties shall be calculated according to the rate prevailing at the date of sale deeds respectively along with interest @ 9 per cent per annum from the date of sale deeds till the payment of money or transfer of property. Here, legitimate share means share which Appellants have got through the division of property as mentioned above in paragraph Nos. 12 and 13.