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Mangamal @ Thulasi And Anr. vs T.B.Raju And Ors. on 19 April, 2018

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1933 OF 2009

Mangammal @ Thulasi and Anr. ….Appellant(s)

Versus

T.B. Raju and Ors. …. Respondent(s)

JUDGMENT

R.K.Agrawal, J.

1) This appeal is preferred against the impugned judgment and

order dated 18.09.2006 passed by the High Court of Judicature at

Madras in S.A. No. 780 of 2006 whereby learned single Judge of the

High Court dismissed the appeal filed by the appellants herein at

the admission stage.

2) Brief facts:-
(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
Signature Not Verified

29.12.1979) and Late Smt. Sundari (died on 22.07.1989) whereas
Digitally signed by
ASHA SUNDRIYAL
Date: 2018.04.19
17:26:40 IST
Reason:

Respondent No. 1 is the brother of the appellants herein. Late T.G.

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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

2

(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.

3) We have given our solicitous consideration to the submissions

of learned counsel appearing for both the parties and perused the

relevant material on record.

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Point(s) for consideration:-

4) The short question that arises before this Court is whether in

the light of present peculiar facts and circumstances of the case,

any intervention of this Court is required with the impugned

decision of the High Court?

Rival contentions:-

5) At the outset, learned counsel for the appellants submitted

that the High Court failed to appreciate that no limitation has been

prescribed for filing a suit for partition by one or more co-sharers,

hence, a suit for partition cannot be dismissed as being barred by

time. Further, it was submitted that dismissal of a suit for partition

by holding that the appellants herein have not filed the suit within

12 years from the date of dispossession cannot be sustained in the

eyes of law specially when there is no proof to prove dispossession

and the respondents have failed to plead and prove ouster. Hence,

the impugned judgment of the High Court is liable to be set aside at

the threshold.

6) Per contra, learned counsel for Respondent No. 1 herein

submitted that Respondent No. 1 had never been a drunkard and

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the appellants made such allegations in order to defeat the sale

made in favour of Respondent Nos. 2 and 3 and that during the

lifetime of their mother, the suit properties remained un-partitioned

and that the properties at Item Nos. 1 and 2 having been legally

sold to Respondent Nos. 2 and 3, hence, the question of seeking

partition and separate possession does not arise in any

circumstance. Further, it was also pointed out that the High Court

rightly dismissed the case at admission case. Hence, this appeal

also deserves to be dismissed. Learned counsel appearing for other

respondents also submitted that they are the bona fide purchasers

of the suit property, hence, this appeal deserves to be dismissed

being devoid of merits.

Discussion:-

7) Before proceeding further, it is apt to have an understanding

of the concept of ancestral property in a nutshell. Any property

inherited upto four generations of male lineage from the father,

father’s father or father’s father’s father i.e. father, grand father etc.,

is termed as ancestral property. In other words, property inherited

from mother, grandmother, uncle and even brother is not ancestral

property. In ancestral property, the right of property accrues to the

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coparcener on birth. The concept of ancestral property is in

existence since time immemorial. In the State of Tamil Nadu, in

order to give equal position to the females in ancestral property, in

the year 1989, the State Government enacted the Hindu Succession

(Tamil Nadu Amendment) Act, 1989 effective from March 25, 1989

which brought an amendment in the Hindu Succession Act, 1956

(for brevity “the Act”) by adding Section 29-A vide Chapter II-A

under the heading of Succession by Survivorship. It is apt to

reproduce the said provision herein below.

29-A. Equal rights to daughter in coparcenary property-
Notwithstanding anything contained in Section 6 of this Act,-

(i) in a Joint Hindu Family governed by Mitakshara Law,
the daughter of a coparcener shall be birth become a
coparcener in her own right in the same manner as a son
and have the same rights in the coparcener property as she
would have had if she had been a son, inclusive of the right
to claim by survivorship: and shall be subject to the same
liabilities and disabilities in respect thereto as the son:

(ii) at a partition in such a Joint Family the coparcener
property shall so divided as to allot to a daughter the same
share as is allotable to a son:

Provided that the share which a pre-deceased son or a
pre-deceased daughter would have got at the partition if he
or she had been alive at the time of the partition shall be
allotted to the surviving child of such pre-deceased son or of
such pre-deceased daughter:

Provided further that the share allotable to the
pre-deceased child of pre-deceased son or pre-deceased
daughter, if such child had been alive at the time of the
partition, shall be allotted to the child of such pre-deceased

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child of the pre-deceased son or of the pre-deceased
daughter, as the case may be:

(iii) any property to which a female Hindu becomes entitled
by virtue of the provisions of clause (i) 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 will or other testamentary
disposition:

(iv) nothing in this Chapter shall apply to a daughter
married before the date of the commencement of the Hindu
Succession (Tamil Nadu Amendment ) Act , 1989:

(v) nothing in clause (ii) shall apply to a partition which
had been effected before the date of commencement of the
Hindu Succession ( Tamil Nadu Amendment) Act, 1989.

8) At this juncture, it is to be examined as to whether the

appellants were entitled to claim partition in ancestral property in

view of the amendment? 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 expenses.

9) To cut a long story short, it is undisputed fact that Late T.G.

Basuvan, father of the appellants, had only ancestral properties and

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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 coparceners.

10) Moreover, under Section 29-A of the Act, legislature has used

the word “the daughter of a coparcener”. Here, the implication of

such wordings mean both the coparcener as well as daughter

should be alive to reap the benefits of this provision at the time of

commencement of the Amendment of 1989. The similar issue came

up for the consideration before this Court in Prakash Ors. vs.

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Phulavati Ors., (2016) 2 SCC 36, this Court while dealing with

the identical matter held at Para 23 as under:-

23. Accordingly, we hold that the rights under the amendment are
applicable to living daughters of living coparceners as on 9th
September, 2005 irrespective of when such daughters are
born……”

(emphasis supplied by us)

It is pertinent to note here that recently, this Court in Danamma @

Suman Surpur Anr. Vs. Amar Ors, 2018 (1) Scale 657 dealt,

inter-alia, with the dispute of daughter’s right in the ancestral

property. In the above case, father of the daughter died in 2001, yet

court permitted the daughter to claim the right in ancestral

property in view of the amendment in 2005. On a perusal of the

judgment and after having regard to the peculiar facts of the

Danamma (supra), it is evident that the Division Bench of this

Court primarily did not deal with the issue of death of the father

rather it was mainly related to the question of law whether daughter

who born prior to 2005 amendment would be entitled to claim a

share in ancestral property or not? In such circumstances, in our

view, Prakash 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

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coparceners would be entitled to claim a share in the ancestral

property.

11) 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 warranted.

Division of the Property:-

12) 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 ½ share and T.B.Raju also got ½ share. Now the property left in

the hand of Late T.G.Basuvan would be his separate property. On

his death, such separate property would devolve through

succession by applying the rules of Sections 8, 9 10 of the Hindu

Succession Act, 1956 in the following manner:

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 Widow i.e. mother of the appellants would get ¼ of the half

share which stands at 1/8.

 Daughter Mangammal-Appellant No. 1 would get ¼ of the half

share which stands at 1/8.

 Daughter Indira-Appellant No. 2 would get the ¼ of the half

share which stands at 1/8.

 Son T.B.Raju-Respondent No. 1 would get the ¼ of the half

share which stands at 1/8. This 1/8 share would be in

addition of ½ share which he got in partition.

13) On the death of the widow i.e., mother of the appellants, her

1/8 share which she got in succession, would devolve through

succession by applying the rules of Sections 15 16 of the Hindu

Succession Act, 1956 in the following manner:

 Daughter Mangammal-Appellant No. 1 would get the 1/3 of

the 1/8 which stands at 1/24.

 Daughter Indira-Appellant No. 2 would get the 1/3 of the 1/8

which stands at 1/24.

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 Son T.B.Raju-Respondent No. 1 would get the 1/3 of the 1/8

which stands at 1/24.

Final Share of Each Person:-

1. Daughter Mangammal-Appellant No .1, total share would

be 1/8 + 1/24 4/24 or 1/6.

2. Daughter Indira-Appellant No. 2, total share would be

1/8 + 1/24 4/24 or 1/6.

3. Son T.B.-Respondent No. 1, total share would be ½ + 1/8

+ 1/24 16/24 or 2/3.

14) 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

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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.

15) To sum up the case, the appellants are not entitled to any

share in coparcenary property since they were not the coparceners

in view of 1989 amendment. However, on the death of their father

and mother, appellants would get their property through succession

in the above manner.

16) In view of above discussion, we, hereby, partially allow the

appeal in the above terms leaving the parties to bear their own cost.

……………………………………J.

(R.K. AGRAWAL)

…………….………………………J.

(ABHAY MANOHAR SAPRE)

NEW DELHI;

APRIL 19, 2018.

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2 thoughts on “Mangamal @ Thulasi And Anr. vs T.B.Raju And Ors. on 19 April, 2018

  1. Are the daughters who were born before 1956 entitled to partition of the property of father which was sold out 25 years back by brothers and file a suit 1 year after the death of the father.

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