R. MAHALAKSHMI Vs A. KANCHANA .
Bench: ANIL R. DAVE,L. NAGESWARA RAO
Case number: C.A. No.-009153-009156 / 2016
Diary number: 35744 / 2015
Advocates: PETITIONER-IN-PERSON Vs
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Non-Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos. 9153-9156 of 2016 (Arising out of SLP (C) Nos.19820-19823 of 2016)
R. MAHALAKSHMI
....Appellant Versus
A. KANCHANA AND ORS.
….Respondents
J U D G M E N T
L. NAGESWARA RAO, J.
Leave granted.
The Appellant is the Fourth defendant in O.S. No. 666
of 2001 filed by her brother Sri A. V. Venkataraman for
partition and allotment of a share of 6/20 in the property in
the Court of Additional Subordinate Judge, Chengalpattu.
Defendants No. 1 to 3 are the sisters of the Appellant. It
was averred in the plaint that the suit property was an
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ancestral property inherited by the father of the Plaintiff,
Sri A.V. Venkataraman, by a partition deed dated
27.04.1954. Sri A.V. Venkataraman died in 1961 leaving
his wife Smt. A.V. Rathnabai, the Plaintiff and the
defendants. According to the Plaintiff he was entitled to a
share of 6/20, the Second and Fourth defendants 6/20
share each and First and Third defendants 1/20 share each
of the suit property. Section 29 A of the Hindu Succession
(Tamil Nadu Amendment) Act, 1989 was inserted w.e.f.
15.03.1989 by which the daughter of a coparcener shall by
birth became a coparcener in her own right in the same
manner as a son and was given the same rights in the
coparcenery property which the son had. Defendants 1 and
3 married prior to the amendment and so they were entitled
to 1/20 share. The Appellant married after the amendment
and Defendant No.2 did not marry as she was paralyzed in
an accident due to which they were entitled to 6/20 share.
The Appellant filed a written statement claiming a share of
36/90.
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2. The Additional Sub Judge, Chengalpattu by his
judgment dated 27.07.2004 decreed the suit holding that
the Plaintiff, the Second Defendant and the Fourth
defendant (Appellant) were entitled to a share of 6/20 each
and First and Third defendants were entitled to a share of
1/20 each in the suit property. The Appellant preferred
A.S. No. 39 of 2006 in which she stated that the Plaintiff
omitted other properties which were available for partition
and that the suit for partial partition was bad in law. The
Principal District Judge, Chengalpattu dismissed A. S.
No.39 of 2006 by a judgment dated 20.11.2006. The
Appellant approached the High Court of Judicature at
Madras by filing Second Appeal No.1168 of 2007 which was
also dismissed on 01.11.2007.
3. Aggrieved by the judgment of the High Court, the
Appellant filed Civil Appeal No. 5053 of 2009 which was
allowed by this Court by a judgment dated 03.08.2009.
This Court examined the scope of Section 29 A of the Hindu
Succession (Tamil Nadu Amendment) Act, 1989 and held
that the daughters who got married after 1989 would have
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equal share as that of a son. After a critical examination of
the registered deed of partition, this Court held that all the
immovable properties inherited by Sri A.V. Venkataraman
were not included in the suit schedule. Finally, this Court
remitted the matter to the Trial Court for the reason that all
the properties which were inherited by the Appellant’s
father by virtue of the registered deed of partition dated
27.04.1954 were not included in the suit schedule.
4. The Additional Subordinate Judge, Chengalpattu by
his judgment dated 08.09.2010 passed a preliminary decree
holding that the Appellant is entitled to 1/4 share of the
suit property(house) and that the Plaintiff is entitled to
remaining 3/4 share. The above judgment was passed by
the Trial Court on re-examination of the material on record
after finding that there was no documentary proof of
availability of any additional assets for partition. It is
relevant to mention that the original Plaintiff, A. V.
Anantharaman, died on 20.04.2010 during the pendency of
O.S. No. 666 of 2001. Respondents No. 1, 2 and 3 herein
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were brought on record as LRs of the original Plaintiff on
21.07.2010 as Plaintiffs No. 2, 3 and 4.
5. Appeal Suit No. 3 of 2011 was filed by Respondents
No. 4 and 5 herein who are Defendants 1 and 3 in O.S.
No.666 of 2001 and Appeal Suit No.9 of 2013 was filed by
the Appellant herein in the Court of Principal District
Judge, Chengalpattu, assailing the judgment of the
Additional Subordinate Judge, Chengalpattu in O. S. 666 of
2001 dated 08.09.2010. The Principal District Judge,
Chengalpattu allowed both the appeals, set aside the
judgment and decree passed by the Additional Subordinate
Judge, Chengalpattu in O.S. No.666 of 2001 dated
08.09.2010 and remitted the matter back to the Trial Court.
It was held in the above judgment that the directions given
by this Court in Civil Appeal No.5053 of 2009 were not
complied with by the Trial Court as all the properties that
were inherited by Sri A.V. Venkataraman by the partition
deed dated 27.04.1954 were not included in the partition
suit.
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6. C.M.A. Nos. 3041 of 2014 and 3042 of 2014 were filed
by Respondents No. 1 and 2 herein (Plaintiffs No. 2 and 3 in
the suit) and C.M.A. Nos.3043 of 2014 and 3044 of 2014
were filed by Respondents No. 4 and 5 herein (Defendants
No. 1 and 3 in the suit) in the High Court of Judicature at
Madras challenging the judgment dated 09.07.2014 in A. S.
3 of 2011 and A. S. No. 9 of 2013. The High Court allowed
the CMAs, set aside the judgment and decree of the First
Appellate Court and granted a preliminary decree in the suit
for partition by declaring that the Plaintiffs were entitled for
5/8 share jointly and Defendants 1, 3 and 4 were entitled to
1/8 share in the suit house property. Aggrieved by the said
judgment of the High Court, the Appellant has filed the
above Civil Appeals.
7. The Appellant appeared in person and submitted that
the finding recorded by the High Court that there was no
direction by the Supreme Court to include other properties
in the suit schedule to enable the parties to claim their
share is erroneous. She also submitted that the High Court
was wrong in its finding that this Court while remanding
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Civil Appeal No.5053 of 2009 only granted liberty to amend
the pleadings, file additional documents and to lead further
evidence in support of the amended pleadings. The
Appellant also submitted that the judgment of the First
Appellate Court was wrongly reversed by the High Court on
a mis-interpretation of the remand order passed by this
Court in Civil Appeal No.5053 of 2009. The Appellant
further submitted that the other findings on other aspects
by the High Court were unwarranted. The Appellant also
submitted that the declaration in the impugned judgment of
the High Court that the Appellant is entitled to 1/8 share is
erroneous. Mr. V.M. Venkatramana, learned Counsel,
appearing for Respondents 1 and 2 submitted that apart
from the ancestral property there are no other properties
that were available for partition. He further submitted that
two plots i.e. Plot 2 and 3 at 185, Adyarthankal were
acquired under the Land Acquisition Act in 1956. He also
supported the judgment of the High Court, which according
to him, does not suffer from any infirmity.
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8. The only point to be decided in this case is whether
the High Court was right in interfering with the judgment of
the Lower Appellate Court by which the suit was remanded
to the Trial Court. As stated earlier, this Court in its
judgment dated 03.08.2009 in Civil Appeal No.5053 of 2009
has categorically held that all the properties that were
inherited by Sri A.V. Venkataraman by virtue of a registered
deed of partition dated 27.04.1954 have not been included
in the suit schedule. This Court clearly held in the said
judgment that another ground for remand was that the
Appellant has taken a consistent stand from the beginning
that the suit for partial partition was bad in law. In our
view, the First Appellate Court was right in remitting the
matter to the Trial Court to take into account the other
properties which were inherited by the Appellant’s father,
Sri A. V. Venkataraman, by virtue of the registered deed of
partition dated 27.04.1954. The High Court committed an
error in holding that there was no direction given by this
Court for including the other properties in the suit
schedule. The High Court held that the only direction
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given by this Court while remitting back to the Trial Court
was to give an opportunity to the parties to amend their
respective pleadings, file additional documents and to lead
further evidence in support of the amended pleadings. The
High Court was wrong in ignoring paragraph 33 of the
judgment in which it was clearly held by this Court that the
remand was warranted in view of the grounds mentioned
therein. One of the grounds was that all the properties that
were inherited by the Appellant’s father, Sri A.V.
Venkataraman, were not included in the suit schedule.
9. As we have held that the High Court mis-interpreted
the judgment of this Court in Civil Appeal No.5053 of 2009,
we set aside the judgment of the High Court and uphold the
judgment of the First Appellate Court in A. S. No.3 of 2011
and 9 of 2013. The Trial Court is directed to consider the
matter strictly in accordance with the directions of this
Court in Civil Appeal No.5053 of 2009 and decide
expeditiously in view of the suit being of the year 2001.
10. For the aforementioned reasons, the Civil Appeals are
allowed. No orders as to costs.
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.…............................J. [ANIL R. DAVE]
................................J. [L. NAGESWARA RAO]
New Delhi, September 15, 2016.
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