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)

    J U D G M E N T 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

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.

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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

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(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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