Partly allowed

Muthusamy v. K.M.Subramaniam

Madras HC17 Dec 2014SA/703/2006

Case brief

AI extract

What is this about?

In a second appeal regarding partition, the single-judge bench held that disputed properties form joint family assets. It upheld the validity of a gift to a daughter without other coparceners' consent as a reasonable Karta act but excluded the gift from partition after succession opened. The appellate share was denied due to delayed succession opening.

What did the court decide?

The second appeal is partially allowed; one property added to schedule, counterclaims partially allowed/allowed, and Trial Court directed to modify decree.

Muthusamy Vs K.M.Subramaniam — Partition | Madras HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATE: 17.12.2014.

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CORAM THE HON'BLE MR.JUSTICE R.MAHADEVAN S.A.No.703 of 2006

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Muthusamy
2. Krishanaveni ...Appellants/ Defendants 1 & 3

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vs.
1. K.M.Subramaniam ...1st Respondent/ Plaintiff
2. K.P.Nagarajan
3. K.P.Ramalingam
4. K.M.Manicka Sundaram
5. Manickam ...Respondents 2 to 5/ Defendants
5 to 8
Second Appeal filed u/s 100 of CPC against the judgment and
decree dated 17.10.2005 made in A.S.No.35 of 2005 on the file of
the Principal District Judge, Erode, confirming the judgment and
decree dated 20.08.2004 made in O.S.No.169 of 1996 on the file of
the II Additional Subordinate Judge, Erode.

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For appellants : Mr.S.V.Jayaraman Senior Counsel for Mr.I.C.Vasudevan

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JUDGMENT

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The unsuccessful first and third defendants in the suit and the first appeal have preferred this second appeal against the judgment and decree of the Principal District Judge, Erode in A.S No 35 of 2005 dated 17.10.2005.

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The suit was filed by the son, against the first defendant father and third defendant sister claiming half share in the suit schedule properties numbering 8 items. The grandfather was shown as the second defendant and subsequent to his death, the paternal uncle was impleaded as the fourth defendant and after his death, his legal heirs have been impleaded as the fifth and sixth defendants. The purchasers of 7^th item of the suit property have been impleaded as seventh and Eight defendants.

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The suit was filed by the plaintiff claiming that the 1^st to 3^rd item in the suit property are ancestral property and item Nos 4 to 8 are purchased out of the income from the ancestral property. As all the properties are joint family properties, the plaintiff has half share in the same. The further case of the plaintiff is that the settlement of 4^th item of suit schedule property in favour of the 3^rd defendant is null and void and so is the alienation of the 7^th item of the suit schedule property. Resisting the suit, the first defendant contended that items 4 to 8 are his self earned property and he has every right to settle the same in favour of the 3^rd defendant. The first defendant also claimed that one property in Nanjaikilampadi Village was purchased by him in the name of plaintiff and the same has been suppressed and ought to be included in the suit for partition. He also raised a plea that the suit must be dismissed for partial partition and staged a counter claim. The third defendant also defending her right and the right of the first defendant made a counter claim to declare that the settlement in her favour as valid.

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After hearing all the parties concerned, the Trial Court decreed the suit by passing a preliminary decree declaring the plaintiff’s entitlement to half share in the suit schedule properties. The appellate court though agreed with just the one contention that the kartha, being the manager had a right to gift a small portion of the property to his daughter, factually found that the gift/settlement was not acted upon atleast till the filing of the suit and therefore, confirmed the entire decree. Aggrieved the present appeal has been filed.

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At the time of admission, the following substantial questions of law were framed:

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1 Whether the properties stand in the Junior minor male member of the Hindu Joint Family, can be considered as a separate property of him for the reason that his mother was shown as guardian to him in the sale deed and hence the proeprties stand in his name could be left out in the partition suit?

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2 Whether the suit is maintainable for partial partition?

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3 Whether the Karta of the joint family could posess his separate property purchased out of his separate income especially when the income derived from the ancestral properties were meagre?

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4 Whether the property gifted to the daughter by the karta of the joint family and accepted by her can be included subjecting it to partition on the allegation that gift deed was not acted upon, at the instance of the other family members?

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5 Whether the gift could be rejected after it becomes complete without praying for declaration of its validity ?

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Subsequently, the additional question of law that has been framed is as follows:

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In view of the introduction of Hindu Succession (Amendment) Act 2005, is not the daughter entitled to equal share along with his son and if so whether, the 2^nd appellant/3^rd defendant is entitled to 1/5^th share in the suit property?

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The Learned Senior Counsel appearing for the appellants, vehemently contended that going by logic if all the properties are to be treated as the joint family property, the property purchased in the name of the plaintiff must also form part of the joint family nucleus. The Learned Senior Counsel further contended that it is impossible to produce receipts for selling buffalo’s in the

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village. The Learned Senior counsel also contended that in the absence of any evidence to show that the contribution for the purchase of the property in favour of the plaintiff, when he was a minor was received from the father in law of the first defendant, the statement of the DW2 , must have been accepted. The Learned Senior counsel also placing reliance upon the judgment in AIR 2004 SC 1284 (R.Kuppayee v. Raja Gounder) to contend that the father can gift a small portion of the joint family property to his daughter and the judgment in 1998 (3) MLJ 390 (Meenakshiammal v. Ramasamy Muthiriar and others) to contend that once a gift has been accepted, the same cannot be disturbed. The Learned Senior also contended that the findings of the courts below that the 3^rd defendant was not in possession of the land is erroneous as the courts failed to see that in cases of vacant land, the possession follows the title. The Learned Senior counsel also placed reliance upon the judgments in 2014 (2) CTC 113 (K.M.Thangavel v. K.T.Udayakumar) and 2014 (3) CTC 688 (Dhanalakshmi v. Janaki Ammal) to contend that the 3^rd defendant is also entitled to 1/5^th share after the Amendment to the Hindu Succession Act in 2005.

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Per Contra, the Learned Counsel appearing for the first respondent/plaintiff would contend that there is no error in the judgment and decree of both the courts below. The Learned Counsel further contended that the property was purchased in the name of the plaintiff with the contribution from the plaintiff’s maternal grandfather. If the contribution was made by the first defendant, it would have been specifically stated as such and that there was no necessity for the mother to represent him as a guardian. The learned counsel further contended that ever since his purchase, the property has been independently enjoyed by the plaintiff by mutation of revenue records in his name. The Learned Counsel also placed reliance upon the judgments in AIR 1968 SC 253 (Dwarampudi Nagaratnamba v. Kunuku Ramayya and another), 2003 (1) MLJ 145 (Kanna Gounder v. Arjuna Gounder) and 2004 (2) MLJ 457 (Shanmugaiah and another v. Thirumalayandi alias Thirumalai Pandaram and others) to contend that the gift/settlement of undivided coparcenary property is invalid. The Learned Counsel also placed reliance upon the judgments in 2007 (1) MLJ 797 (SC) (Sheela Devi v. Lal Chand), 2008 (4) CTC 773 (Valliammal v. Muniyappan) and 2009 (6) SCC 99 (G.Sekar v. Geetha) to contend that the daughter would be entitled to equal share only if the succession remains unopened on 20.12.2004 and in the present case, since the succession was opened much prior, the amending act would not come to the aid of the third defendant. Under the above circumstances, the Learned Counsel for the first respondent/plaintiff sought the dismissal of the appeal.

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Heard both the Learned Counsels and perused the materials on record.

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Upon perusal of the records, this court does not find any error or perversity in the findings given by the courts below regarding the nature of the all the properties. As rightly held by the courts below, in the absence of proof to the contrary by a person claiming to have acquired the property from his individual income, the same has to be treated as Joint family property. The first defendant himself has admitted in his cross examination that he had not taken the plea that he was selling buffalos’ and earned individual income out of the same. Further, he has also agreed to have sold away item No 6 along with the plaintiff and therefore, all the suit schedule properties are only joint family properties.

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Substantial questions of law 1 and 2.

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It is not in dispute that the property was purchased in the name of the plaintiff, when he was a minor. The source of consideration is the dispute. Both the courts below have appreciated the oral and documentary evidence and held that in the absence of proof by the first defendant that he had contributed for the sale consideration and going by the fact that since the mother had represented the plaintiff, in all probabilities, the contribution would have come from the maternal grandfather. Just like the fact that there is no proof to show the contribution from the first defendant, apart from the oral evidence, there is no proof to evince the contribution from the maternal grandfather of the plaintiff. Once a stand is taken by the plaintiff that the property in Nanjaikilambadi village was purchased with the contribution from his maternal grandfather and not from the joint family income, the burden shifts on him. This court upon perusal of the records, is unable to accept the reasons given by both the courts below to conclude that the property was purchased from and out of the contribution from the maternal grandfather of the plaintiff. It is common in a joint family to purchase properties in the names of the coparcerners and mutation would not create any independent right. Therefore, this court is of the view that the property measuring 1.50 acres must also have been part of the suit schedule and included in the partition suit.

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In so far the plea regarding the partial partition is concerned, since the plaintiff bonafidely believed the property to be his individual property, this court is of the view that the suit would not be hit by the theory of partial partition. The substantial questions of law are answered accordingly.

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12. Substantial question of law No. 3:

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The kartha of a joint family can have independent business and could purchase properties in his name. But the burden will always lie on him to prove that the properties standing in his name were purchased from his individual income and not from the income from the joint family properties. In the case on hand, the first defendant has not proved that he had separate income other than the income generated out of joint family business. As rightly held by the courts below, since the first defendant has put the plaintiff in possession of all the properties on a condition to pay Rs 35,000/- per year, the properties in item 1 to 3 were yielding good revenue. The substantial question of law is answered accordingly.

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Substantial questions of law 4 and 5:

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The Learned senior Counsel for the appellants/first and third defendants has relied upon the judgment reported in AIR 2004 SC 1284 (R.Kuppayee v. Raja Gounder) ,wheren the Apex Court has held as follows:

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"11. Coming to the second point, the trial court held that since the property was ancestral in nature, the respondent had no authority/power to make a gift of a portion of the ancestral property in favour of his daughters. In appeal the First Appellate Court accepted that the father could give away a small portion of the ancestral property to his daughters out of the total holding of the family property but since in this case the total extent of property owned by the family had not been proved it could not be held that the property gifted by the father was of a reasonable portion of the total holding of the family. The High Court affirmed the finding recorded by the First Appellate Court.

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The High Court of Madras in a series of judgments has taken the view that father could make a gift within reasonable limits of ancestral immovable property to his daughter as a part of his moral obligation at the time of her marriage or even thereafter.

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In Anivillah Sundararamaya vs. Cherla Seethamma and others [1911 (21) MLJ 695], it

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was held that a small portion of the ancestral immovable property could be given to the daughter at the time of her marriage or thereafter and such a gift would be a valid gift. In this case 8 acres of ancestral immovable property out of 200 acres of land possessed by the family were given in gift by the father to his daughter after her marriage. Upholding the gift it was observed:-

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"P. Narayana Murthi for 1st respondent:- The present case is stronger than Kudutumma v. Narasimhacharyulu, as it is the father that has given the property and not the brothers. A gift made to the son-in-law belongs also to the daughter vide Ghose's Hindu Law, 2nd Edn., p.313, Footnote. There is a text of Vyasa to that effect. Se Ghose, p.389, for translation; vide p.360 also vice versa. A gift to the daughter would belong to the son-in-law. If it is proper to make gifts at the time of marriage it would be equally proper if made afterwards. Though the texts do not require gifts to be made to daughters at the time of marriage, if made they are not invalid. Churamon Sahu v. Gopi Sahu referred to, where Mookerji J. approves of Kudutamma v. Narasimhacharyulu; Bachoo v. Mankuvarhai.

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The same view was taken by the Madras High Court in Pugalia Vettorammal and another vs. Vettor Goundan, [1912 (22) MLJ 321]. In this case it was held that a father could make gift to a reasonable extent of the ancestral immovable property to his daughter. Gift made of 1/6th of the total holding of the ancestral property was held to be a valid. The same view has later been taken by the Madras High Court in Devalaktuni Sithamahalakshmamma and others vs. Pamulpati Kotayya and others [AIR 1936 (Madras) 825] and Karuppa Gounder and others vs. Palaniammal and others [1963 (1) MLJ 86]. A Full Bench of Punjab & Haryana High Court in The Commissioner of Gift Tax vs. Tej Nath [1972 PLR (74) 1] and the High Court of Orissa in Tara Sabuani vs. Raghunath [AIR 1963 Ori. 59] have also taken the same view.

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The powers of the father or the managing member of the joint Hindu family vis-

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`-vis coparcenary property have been summarised in paragraphs 225, 226 and 258 of Mulla's Hindu Law which reads:-

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"225. Although sons acquire by birth rights equal to those of a father in ancestral property both movable and immovable, the father has the power of making within reasonable limits gifts of ancestral movable property without the consent of his sons for the purpose of performing 'indispensable acts of duty, and for purposes prescribed by texts of law, as gifts through affection, support of the family, relief from distress and so forth'.

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A Hindu father or other managing member has power to make a gift within reasonable limits of ancestral immovable property for 'pious purposes'. However, the alienation must be by an act inter vivos and not by will. A member of a joint family cannot dispose of by will a portion of the property even for charitable purposes and even if the portion bears a small proportion to the entire estate. However, now see section 30 of the Hindu Succession Act, 1956.

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(1) According to Mitakshara law as applied in all the States, no coparcener can dispose of his undivided interest in coparcenary property by gift. Such transaction being void altogether, there is no estoppel or other kind of personal bar which precludes the donor from asserting his right to recover the transferred property. He may, however, make a gift of his interest with the consent of the other coparceners.

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(2) As to disposition by will after the coming into operation of the Hindu Succession Act, 1956, see section 30 of the Act."

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Combined reading of these paragraphs shows that the position in Hindu law is that whereas the father has the power to gift ancestral movables within reasonable limits, he has no such power with regard to the ancestral immovable property or coparcenary property. He can, however make a gift within reasonable limits of ancestral immovable property for "pious purposes". However, the alienation must

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be by an act inter vivos, and not by will. This Court has extended the rule in paragraph 226 and held that the father was competent to make a gift of immovable property to a daughter, if the gift is of reasonable extent having regard to the properties held by the family.

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On the authority of the judgements referred to above it can safely be held that a father can make a gift of ancestral immovable property within reasonable limits, keeping in view, the total extent of the property held by the family in favour of his daughter at the time of her marriage or even long after her marriage."

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The Learned Senior counsel has relied upon the judgment reported in 1998 (3) MLJ 390 (Meenakshiammal v. Ramasamy Muthiriar and others) in which this court has held as follows;

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"20. Commenting on the same, Sanjiva Row's Indian Succession Act - Sixth Edition - 1992, the learned author said thus:

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Once an onerous gift has been accepted subject to the condition imposed by it, it cannot be repudiated. The position in law is that it is open to the legatee to whom an onerous gift is given either to accept it in toto or to reject it in toto. If he accepts it, he cannot refuse to carry out the obligation subject to which it is given. In Attorney General v. Christ's Hospital 48 E.R. 156, the testator gave a sum of money each year to the Governors of a certain hospital subject to the condition of their receiving a number of boys and girls annually, nominated by the Governors of another hospital. For sometime the condition was being fulfilled. But later there was a refusal to perform the condition. It was held, that the gift having been once accepted, the condition could not be repudiated. In the case of disclaimer, an opinion was expressed in Fraser v. Young (1913) 1 Ch.D. 272, that till

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the disclaimer is acted upon, the disclaimer could be retracted, especially when the disclaimer had not induced the trustees or the other legatees under the Will to change their position on the faith of the disclaimer.

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I have made a reference to this section only to emphasis the fact that if at all the gift could be repudiated, that can only be by the legatee by disclaiming it and the discontainer is accepted by the donor. In this case, the gift is complete and it was accepted and the patta is also changed in the name of donee. The circumstances are clear that the document might have been executed in consultation with the donee and she has also accepted the same. Once the gift is accepted, the donor has no right over the property and there cannot be any question of executing a will in favour of the Mutt. The Mutt will not get any benefit on the basis of the will. "

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Per contra, the Learned Counsel appearing for the first respondent/plaintiff, has relied upon the following judgments to contend that the gift/settlement is perse illegal. (i) AIR 1968 SC 253 (Dwarampudi Nagaratnamba v. Kunuku Ramayya and another)

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"6. Venkatacharyulu was free to make a gift of his own property to his concubine. The gifts,, under Exs. Al 'and A-2 were not hit' by s. 6(h) of the Transfer of Property Act. But the properties gifted under Ex. A-1 and A- 2 were coparcenary properties. Under the Madras school of Mitakshara law by which Venkatacharyulu was governed, he had no power to make a gift of even his undivided interest in the coparcenary properties to his concubine. The gifts were therefore invalid.

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The invalid gifts were not validated by the disruption of the joint family in 1947. After the disruption of the joint family, Venkatacharyulu was free to make a gift of his divided interest in the coparcenary properties to the appellant, but he did not make any such gift. The transfers under Exs. A-1 and A-2

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were and are invalid. We find no ground for interfering with the decrees passed by the High Court. "

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(ii) 2003 (1) MLJ 145 (Kanna Gounder v. Arjuna Gounder)

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"13. The prohibition against making of gifts by coparcener of his undivided interest in the coparcenary continues even after the enactment of Hindu Succession Act and he can make such gifts either to another coparcener or to a stranger only with the prior consent of all other coparceners. In the present case, even though Muthulakshmiammal inherited the interest of her deceased husband in the family property, she continued to be a member of the family and the property including that of her's was held by the family. As a female heir, having inherited property under Section 6 of the Hindu Succession Act, Muthulakshmiammal cannot be treated as having ceased to be a member of the family without her volition. The renunciation of her interest in the coparcenary property is only in favour of one of the coparceners, namely, the plaintiffs, and it does not enure for the benefit of all other coparceners. Factually there is no consent for the above renunciation given by the other coparcener, namely, the defendant herein. Though Muthulakshmiammal can dispose of her undivided interest in the coparcenary property by a Will or sale for a valuable consideration, she cannot make a gift of such interest without the prior consent of all other coparceners. In such circumstances, the gifts made in Exs.A-2 and A-3 settlement deeds in favour of the plaintiffs by Muthulakshmiammal are not legally valid on account of lack of prior consent of other coparcener and the plaintiffs do not get any right under the gifts. The plaintiffs are entitled to only 1/3rd share in the suit items. The substantial questions of law are answered accordingly. "

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(iii) 2004 (2) MLJ 457 (Shanmugaiah and another v. Thirumalayandi alias Thirumalai Pandaram and others)

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"8. The learned Counsel for the first

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respondent in support of his contention relied on a decision of this Court reported in (2003) 1 M.L.J. 145 (KANNA GOUNDER AND ANOTHER V. ARJUNA GOUNDER), which in the opinion of this Court, squarely applies to the present facts of the case. In the instant case, though the second defendant can dispose of his undivided interest in the coparcenary property by way of a settlement deed, he cannot create the same without the consent of all the other coparceners. Since the relief sought for by the plaintiff solely rested on the validity of the settlement deed, and the settlement deed is declared invalid, the plaintiffs cannot have the relief on the basis of the same. Both the Courts below were perfectly correct in finding so both on factual and legal position. This Court is unable to notice any reason to disturb the concurrent finding of both the Courts below. "

¶72

Upon perusal of the above judgments, it is clear that the father has the power to gift a small portion of joint family property to the daughter on the occasion of her marriage. The gift could also be subsequently made. However, from the ratio in the above cases, it is also clear that the consent of the other coparcerners have to be obtained. The purpose of consent can only be attributed to identification of the property and the extent. Therefore this court is of the view that the first defendant as kartha has the power to gift a small portion. With regard to the possession, the land was settled on 08.09.1993. The revenue records mutated pending suit. The possession in joint family properties comprised in various villages is always symbolic. The courts below have erred in holding that the third defendant was not in possession and the property has been in joint possession of the plaintiff and the first defendant even after the settlement. As rightly contended by the Learned Senior Counsel for the appellants, possession flows with title, which is also evident from the settlement deed. Once the donee claims to have accepted the gift, the issue ends then and there, though belatedly, the mutation of records have taken place. In view of the fact that this court has held that the gift to be complete, in the absence of plea of fraud or coercion, the gift cannot be set aside. To challenge the same on the grounds aforementioned, the plaintiff only has to file a separate relief for declaration. In view of the fact that the third defendant has made a counter claim for declaration of her title, the plaintiff need not initiate a separate suit for declaration. The substantial questions of law

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are answered accordingly.

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Additional Substantial question of law No 1.

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Both the learned counsels have relied upon a catena of judgments on the issue. But all the judgments lay down the same principle laid down in Section 6 (5) of the Amended Act which reads as follows:

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Section 6 (5) of the Act reads as follows:

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"Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004."

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The Learned Senior Counsel appearing for the appellants has relied upon the judgments of this court reported in 2014 (2) CTC 113 (K.M.Thangavel v. K.T.Udayakumar) wherein this court has held as follows:

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"49. A proper interpretation of section 6 of the Hindu Succession Act, 1956 as amended by the Hindu Succession (Amendment) Act, 2005 (Central Act) in conjunction with the amendment introduced by the Tamil Nadu Amendment Act, 1989 (Act 1 of 1990) will result in the identification of the legal position so far as Tamil Nadu is concerned, as follows:

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a) In case the father of the female, who claims to have become a coparcener by virtue of the amendment had died prior to 25.03.1989, the date on which the Tamil Nadu Amendment Act came into force, she will not be entitled to the benefit of either Tamil Nadu Amendemnt Act or the amendment to Section 6 made by the Hindu Succession (Amendment) Act, 2005.

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b) In case the father was alive on 25.03.1989 and his daughter was unmarried on that date, by virtue of Tamil Nadu Amendment Act, she would have become a coparcener in respect of the coparcenary property, which remained undivided.

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c) In the case referred in clause (b) above, if a partition had been effected prior to the effective date and her father had been allotted a share, she would have become a coparcener with the father only in respect of the property allotted to his share in the partition that took place prior to the crucial date, namely

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25.03.1989.

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d) The death of the father (coparcener) after the Tamil Nadu Amendment and before the commencement of the Central Amendment made by Hindu Succession (Amendment) Act, 2005 shall not deprive a daughter, who remained unmarried on 25.03.1989 and had become a coparcener by virtue of the Tamil Nadu Amendment of her right by birth as coparcener.

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e) Irrespective of the fact whether the daughter of a coparcener was married or unmarried as on the date of commencement of the Hindu Succession (Amendment) Act, 2005, she would have become a coparcener by birth in respect of the coparcenary property along with her father, provided her father was alive on the date of commencement of the Hindu Succession (Amendment) Act, 2005, with an exception that any disposition or alienation including any partition or testamentary disposition, which had taken place prior to 20.12.2004, would not be affected and invalidated.(The partition referred to above should have been effected by means of a duly registered partition deed or effected by a decree of a court).

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f) The death of a coparcener after 25.03.1989 and before the commencement of the Central Amendment Act made under the Hindu Succession (Amendment) Act, 2005 will not make the daughters, who got married prior to 25.03.1989 as coparceners. "

¶89

The above view was reiterated by this Court in 2014 (3) CTC 688 (Dhanalakshmi v. Janaki Ammal).

¶90

The Learned counsel appearing for the first respondent/ plaintiff has relied upon the judgment of the Apex Court reported in 2009 (6) SCC 99 (G.Sekar v. Geetha), wherein it has been held as follows;

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We may notice Sub- section (5) of Section 6 of the Act, which reads as under:

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"6 (5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December,2004.

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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 or partition effected by a decree of a court."

¶95

Thus, where a partition has not taken place, the said provision shall apply.

¶96

In the judgment reported in 2007 (1) MLJ 797 (SC) (Sheela Devi v. Lal Chand), the Apex Court has held as follows;

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"19. The Act indisputably would prevail over the old Hindu Law. We may notice that the Parliament, with a view to confer right upon the female heirs, even in relation to the joint family property, enacted Hindu Succession Act, 2005. Such a provision was enacted as far back in 1987 by the State of Andhra Pradesh. The succession having opened in 1989, evidently, the provisions of Amendment Act, 2005 would have no application. Sub-section (1) of Section 6 of the Act governs the law relating to succession on the death of a coparcener in the event the heirs are only male descendants. But, proviso appended to Sub-section (1) of Section 6 of the Act creates an exception. First son of Babu Lal, viz., Lal Chand, was, thus, a coparcener. Section 6 is exception to the general rules. It was, therefore, obligatory on the part of the Plaintiffs-Respondents to show that apart from Lal Chand, Sohan Lal will also derive the benefit thereof. So far as the Second son Sohan Lal is concerned, no evidence has been brought on records to show that he was born prior to coming into force of Hindu Succession Act, 1956. "

¶98

In the judgment reported in 2008 (4) CTC 773 (Valliammal v. Muniyappan), this court has held as follows;

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"6. In the plaint, it is stated that the father of the plaintiffs died about thirty years prior to the filing of the suit. The second plaintiff as P.W.1 has deposed that their father died in the year 1968. The

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Amendment Act 39 of 2005 amending S. 6 of the Hindu Succession Act, 1956 came into force on 9-9-2005 and it conferred right upon female heirs in relation to the joint family property. The contention put forth by the learned Counsel for the appellant is that the said Amendment came into force pending disposal of the suit and hence the plaintiffs are entitled to the benefits conferred by the Amending Act. The Amending Act declared that the daughter of the coparcener shall have the same rights in the coparcenary property as she would have had if she had been a son. In other words, the daughter of a coparcener in her own right has become a coparcener in the same manner as the son insofar as the rights in the coparcenary property are concerned. The question is as to when the succession opened insofar as the present suit properties are concerned. As already seen, the father of the Plaintiffs died in the year 1968 and on the date of his death, the succession had opened to the properties in question. In fact, the Supreme Court in a recent decision in Sheela Devi and Ors. v. Lal Chand and Anr., 2007 (1) MLJ 797 (SC) considered the above question and has laid down the law as follows :

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The Act indisputably would prevail over the old Hindu Law. We may notice that the Parliament, with a view to confer the right upon the female heirs, even in relation to the joint family property, enacted the Hindu Succession Act, 2005. Such a provision was enacted as far back in 1987 by the State of Andhra Pradesh. The succession having opened in 1989, evidently, the provisions of Amendment Act, 2005 would have no application. In view of the above statement of law by the Apex Court, the contention of the appellant is devoid of merit. The succession having opened in the year 1968, the Amendment Act 39 of 2005 would have no application to the facts of the present case.”

¶103

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¶104

In view of the above statement of law by the Apex Court, the contention of the appellant is devoid of merit. The succession having opened in the year 1968, the Amendment Act 39 of 2005 would have no application to the facts of the present case. No other contention was advanced by the counsel for the appellant."

¶105

Upon perusal of the above judgments, it is clear that to claim a right, the succession must not have opened before 20.12.1994. In the present case, the succession was opened in 1996 and the decree of partition was passed by the Trial Court on 20.08.2004. Therefore, the amendment to Hindu Succession Act, will not enable the third defendant to claim any share in the suit property. The substantial question of law is answered accordingly.

¶106

In the result, the second appeal is partially allowed modifying the judgment of the Trial Court as indicated below. The Items 4 & 7 of the suit property are deleted and the property measuring 1.50 acres in Nanjaikilambadi village is to be included in the suit schedule for partition between the plaintiff and the first defendant. The counter claim of the first defendant is partially allowed and the counter claim of the third defendant is allowed. The Trial Court is directed to modify the decree in the above lines and proceed in accordance with law with regard to the final decree. No costs.

¶107

Sd/-
Asst.Registrar (CO)
/true copy/
Sub Asst. Registrar
mra
To
1. The Principal District Judge
Erode.
2. The II Additional Subordinate Judge,
Erode.

¶108

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¶109

The Section Officer,

V.R. Section,

High Court,

Madras.

1 cc to mr.I.C. Vasudevan, Advocate, sr. 62389
1 cc to Mr.K.S. Jayaganesan, advocate, sr. 62034
S.A.No.703 of 2006
SV (CO)
kk 12/3

¶114

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Muthusamy v. K.M.Subramaniam

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Muthusamy v. K.M.Subramaniam

Case brief

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