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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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