The defendant in the suit for partition is the appellant herein. The plaintiffs are the mother and sister of the defendant.
2. The case of the plaintiffs is that one Das Naidu, the husband of the first plaintiff and father of the defendant and 2nd plaintiff, owned the suit schedule property and died intestate during June 1979 leaving behind the plaintiffs and defendant as his legal heirs to inherit his properties. While so, after his marriage, the defendant started neglecting his mother and the 2nd plaintiff. When the plaintiffs sought for amicable partition of property, the defendant declined. Hence, the suit for partition seeking division of the suit properties by metes and bounds and allotment of 1/3rd share to each of the plaintiffs.
3. The defendant denied the claim of the plaintiffs on the ground that the suit properties are not self-acquired properties of Das Naidu, but it is his ancestral properties. However, the first plaintiff was paid Rs.60,000/- and 20 soverigns of jewels in lieu of ½ share in the suit property and with that money, the 2nd plaintiff has purchased property at Mannavadu Village. Therefore, the suit is not maintainable.
4. Based on the above pleadings, the trial Court framed the following issues:
(1) Whether the suit property is the self acquired property of Das Naidu or ancestral property?
(2) Whether the plaintiffs are entitled to 2/3 rd share?
(3) Whether the 1st plaintiff had received his half share value by means of cash and jewells?
(4) To what relief the plaintiffs are entitled to?
5. PW1 to PW3 and DW1 to DW3 were examined. Exs.A1, A2 and Ex.B1 are the documents relied by the respective parties. The trial Court, on considering the evidence let in by the parties, allowed the suit. Based on the evidence, it held that the suit properties are the ancestral properties of Das Naidu. Therefore, as coparceners the defendant and Das Naidu are entitled for ½ share each, on the date of succession. The plaintiffs as mother and daughter are entitled to inherit the share of Das Naidu along with the defendant. Thus, the trial Court has apportioned the shares at the rate of 1/6th to each of the plaintiffs and 2/3 share to the defendant.
6. Aggrieved by the judgment of the trial Court, the defendant preferred the first appeal in A.S.No.25 of 2002 and the same was dismissed. Hence, this second appeal.
7. At the time of admission, this Court has formulated the following Substantial Questions of Law for consideration:-
“(1)Whether relief in the suit could till still be granted when the very specific and primary basis, contention and plea of the plaintiffs, of the plaint schedule properties being self-acquired had been negatived and rejected?
(2) Whether a second partition, in the form of the suit, would lie and be maintainable, when an earlier partition had already been effected and the share paid, and the patta also transferred consequentially under Ex.B1?
(3) Whether relief in the suit could be granted without the amendment of the plaint, when the very identity of the properties had been disputed and shown as wrong, such as the survey numbers, being Gram Nattam nature of land etc., as evident from the patta filed under Ex.B1?”
8. The learned counsel appearing for the appellant/defendant submitted that the Courts below having negatived the contention of the plaintiffs that the suit properties are self acquired properties of Das Naidu, Court should not have ventured further to allot 1/6 share to each of the plaintiffs on the premise, the properties are the ancestral properties of Das Naidu. Further, the Courts below failed to consider the evidence establishing the partition already effected and the payment made to the first plaintiff in lieu of her share and she has invested the money in property at Mannavedu village and consequently, Ex.B1-patta for the suit properties were transferred in the name of the defendant.
9. Per contra, the learned counsel for the respondent/2nd plaintiff submitted that though in the plaint it was pleaded that the suit properties are self acquired property of Das Naidu, the Courts below have held it is ancestral property of Das Naidu. Eventually, by enactment of Ac,39/2005, the second plaintiff has also become a co-parcener and therefore, she is entitled for equal share in the ancestral property along with his father and brother. Therefore, at any rate, she is entitled for larger share, than what the Courts below have allotted. In those line, a cross objection has also been filed by the respondent/2nd plaintiff. Further, the learned counsel contended that pending the second appeal, the first plaintiff died and the shares have to be allotted taking note of the subsequent events.
10. In support of his contention, the learned counsel appearing for the respondent/2nd plaintiff relied upon the judgment of the Hon'ble Division Bench of this Court in P.Vijayalakshmi v. P.Susheela & others reported in 2012-5-L.W. 378, wherein para 29 reads as under:-
“29. In the instant case, Purushotham Chettiar died on 30.11.2001, the date on which notional partition had taken place and succession opened. When notional partition has taken place before 20.12.2004, as contemplated under explanation to sub-section (5) of Section 6 of the Act, the said partition is not affected. Admittedly, plaintiff got married in 1981-82. In this circumstances, as per the law then in force, plaintiff is not entitled to claim share in the properties on par with male member. Plaintiff can claim her 1/3rd share from out of her father's half share i.e. 1/6th share. Trial Court rightly held that plaintiff is entitled 1/6th share in the suit properties and the said finding of the trial Court does not suffer from any error warranting interference. There is no merit in this appeal and the appeal is liable to be dismissed.”
11. Further, the learned counsel appearing for the respondent/2nd plaintiff also relied upon the judgment of the Hon'ble Supreme Court in Prakash and others v. Phylavati and others reported in (2016) 2 Supreme Court Cases 36, wherein it is held:
“17. The text of the amendment itself clearly provides that the right conferred on a “daughter of a coparcener” is “on and from the commencement of the Hindu Succession (Amendment)Act, 2005”. Section 6(3) talks of death after the amendment for its applicability. In view of plain language of the statue, there is no scope for a different interpretation than the one suggested by the text of the amendment. An amendment of a substantive provision is always prospective unless either expressly or by necessary intendment it is retrospective. In the present case, there is neither any express provision for giving retrospective effect to the amended provision nor necessary intendment to that effect. Requirement of partition being registered can have no application to statutory notional partition on opening of succession as per unamended provision, having regard to nature of such partition which is by operation of law. The intent and effect of the amendment will be considered a little later. On this finding, the view of the High Court cannot be sustained.
18.The contention of the respondents that the amendment should be read as retrospective being a piece of social legislation cannot be accepted. Even a social legislation cannot be given retrospective effect unless so provided for or so intended by the legislature. In the present case, the legislature has expressly made the amendment applicable on and from its commencement and only if death of the coparcener in question is after the amendment. Thus, no other interpretation is possible in view of the express language of the statue. The proviso keeping dispositions or alienations or partitions prior to 20.12.2004 unaffected can also not lead to the inference that the daughter could be a coparcener prior to the commencement of the Act. The proviso only means that the transactions not covered thereby will not affect the extent of coparcenary property which may be available when the main provision is applicable. Similarly, Explanation has to be read harmoniously with the substantive provision of Section 6(5) by being limited to a transaction of partition effected after 20.12.2004. Notional partition, by its very nature, is not covered either under the proviso or under sub- section (5) or under the explanation.”
12. In a suit for partition, it is well settled principle that all the parties are deemed to be plaintiff and dehors of the pleadings, it is the duty cast upon the Courts to apportion the property as per law governing the parties. In this case, the admitted facts are Das Naidu died intestate in the year 1979. The second plaintiff got married in the year 1968. The first plaintiff died on 05.08.2004. The Courts below on appreciation of evidence has held that, the properties are ancestral property. The alleged earlier partition has not been proved by the defendant. The discrepancies alleged in the suit properties neither pleaded nor proved.
13. The plaintiffs trace their rights through Das Naidu. The evidence produced has led to the conclusion that the properties stands in the name of Das Naidu are ancestral in nature. Therefore, as per Section 6 of the Hindu Succession Act, 1956, then existed, on the death of Das Naidu in the year 1979, the plaintiffs right put together in the family property by notional partition is 1/3 share from out of the half share of Das Naidu. The Courts below have not erred in their conclusion and there is no question of law involved in this case substantially to interfere with the judgment of the Courts below.
14. For the sake of complete adjudication, the learned counsel appearing for the respondent/2nd plaintiff submitted that the subsequent event namely, the death of the first plaintiff may be taken note and her share may also be apportioned between the 2nd plaintiff and the defendant.
15. This Court is of the opinion that, to avoid further delay it is apt to mention it expressly that during the final decree proceedings, if the parties does not claim any exclusive right over the share of the first plaintiff Kanthammal (since deceased) or forego any exclusive claim, then they are entitled to share her property equally by devolution. In such event, the appellant will be entitled for ¾ share and the respondent/2nd plaintiff will be entitled for 1/4 share, which can be appropriately worked out in the final decree proceeding by the Execution Court. Since the matter is pending for more than 33 years, the trial Court is directed to expedite the final decree proceedings and shall dispose of the same at the earliest on priority basis.
16. In the result, the second appeal and the cross objection are dismissed. No costs.
09.01.2017 Index:Yes/No Internet:Yes/No To
1. The Additional District Judge, Fast Track Court No.IV, Poonamallee.
2. The District Munsif Court, Ambattur.
Dr.G.Jayachandran, J.
ari Judgment made in S.A.No.1166 of 2005 and Cross Obj.No.19 of 2010 09.01.2017 http://www.judis.nic.in