published in http://judis.nic.in/judis_chennai/qrydisp.aspx?filename=39584
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:12.10.2012
Coram:
THE HONOURABLE MR.JUSTICE G.RAJASURIA
S.A.No.1403 of 2005
T.P.Vadivelu .. Appellant
vs.
1. S.Padmavathy
2. T.P.Saravanan
3. T.P.Jagannathan
4. T.P.Natarajan .. Respondents
This second appeal is filed against the judgment and decree dated 07.04.2005 passed by the learned III Additional Judge, City Civil Court, Chennai in A.S.No.307 of 2004 confirming the preliminary decree dated 05.02.2004 passed by the learned VI Assistant Judge, City Civil Court, Chennai in O.S.No.6174 of 1995.
For Appellant : Mr.K.Hariharan
For Respondent 1 : Mrs.Thamizhselvi
for M/s.P.Devdas Associates
R2 to R4 : Remained exparte in the lower
court itself.
J U D G M E N T
This second appeal is focussed by D3, animadverting upon the judgement and decree dated 07.04.2005 passed by the learned III Additional Judge, City Civil Court, Chennai in A.S.No.307 of 2004 confirming the preliminary decree dated 05.02.2004 passed by the learned VI Assistant Judge, City Civil Court, Chennai in O.S.No.6174 of 1995.
2. The parties are referred to here under according to their litigative status and ranking before the trial Court.
3. Compendiously and concisely, the germane facts absolutely necessary for the disposal of this Second Appeal would run thus:
a] The first respondent/plaintiff filed the suit for partition seeking the following reliefs:
- To pass a judgment and decree as follows:
(i) declaring the plaintiff is entitled to 1/5 th share in premises bearing Old Door No.60, New Door No.27, Kannaiah Chetty Garden 3rd Street, Peravallur, Madras 600 082 more fully described in the plaint A schedule property here under and plaint B schedule property in equity.
(ii) to appoint an Advocate Commissioner to divide and allot the plaintiff's 1/5 th share in the plaint A schedule property and if the premises is not capable of division direct the Advocate Commissioner to sell the plaint A schedule property and pay 1/5 th share out of the sale proceeds.
(iii) for a permanent injunction in favour of the plaintiff in respect of the B schedule property in premises No.Old No.60, New No.27, Kannaiah Chetty Garden 3rd Street, Peravallur Madras 600 082 and more fully described in the plaint B schedule property restraining the defendants their men, agents, servants person or person claiming through or under them from interfering with the plaintiff's peaceful possession and enjoyment of the B schedule property and
(iv) for costs,
(extracted as such)
in respect of the lease hold right over the suit property found described in the schedule of the plaint.
b] The averments in the plaint could succinctly and precisely be set out thus:
The plaintiff is the sister and the defendants are her brothers, all being the children of late T.K.Pachaiyappa Mudaliar, who obtained the suit property on lease and started enjoying it during his life time.
In fact, the suit property belongs to the estate of Ramaiah Naidu. The said Pachaiyappa Mudaliar had put up super-structure on the land taken on lease and he started enjoying it with his family members. He died intestate on 18.12.1972 leaving behind his wife Govindammal and his five children, who are the plaintiff and the defendants to succeed his rights over the suit property.
The children of the Pachaiyappa Mudaliar were minors at the time of his death.
Subsequently, Govindammal also died intestate on 19.02.1984. The plaintiff was living with the defendants till 1987 and thereafter, she went to her mother-in-law's house with her husband and started living there.
She had put up the tiled super structure measuring 18' East to West and 12' feet North to South out of her own funds in the eastern corner of the plaint scheduled property for her own residence with the concurrence of the defendants from the month of February 1994 onwards and she has been in possession and enjoyment of the said portion, which is described as the B schedule in the plaint.
While so, D3 attempted to dispossess her from the suit scheduled property.
Thereupon,
dispute erupted, which resulted in the filing of the suit claiming 1/5 th share in the entire A scheduled property.
c] Per contra, denying and refuting, challenging and impugning the averments/allegations in the plaint, D3 filed the written statement, which could tersely and briefly be set out thus:
The suit is not at all maintainable. She had not put up the super structure in the B scheduled property as described in the plaint. The plaintiff is not residing in the B scheduled property described in the plaint, which forms part of the A scheduled property; but she is actually residing at No.9, Thiru.Vi.Ka.Street, Vyasarpadi, Chennai 600 039.
T.K.Pachaiyappa Mudaliar died after executing the Will dated 01.06.1972 in favour of D3, who discharged the mortgage debt incurred by his father.
Accordingly, he prayed for the dismissal of the suit.
d] The other defendants remained exparte.
e] Whereupon issues were framed.
f] Up went the trial, wherein the plaintiff examined herself as PW1 along with P.W.2 and marked Exs.A1 to A20. The third defendant/Vadivelu examined himself as D.W.1 and marked Exs.B1 to B6.
g] Ultimately the trial court decreed the suit granting and passed the preliminary decree allotting 1/5 th share in favour of the plaintiff and also granting injunction in favour of the plaintiff not to disturb her possession in respect of the B scheduled property of the plaint.
h] Being aggrieved by and dissatisfied with the same, D3 filed the appeal, for nothing but to be dismissed by the first appellate court confirming the judgment and decree of the trial court.
4. Challenging and impugning the judgments and decrees of both the Courts below, this Second Appeal has been filed by D3 on various grounds.
5. My learned predecessor at the time of admitting the second appeal, framed the following substantial questions of law.
1. Admittedly, when the plaintiff has asked for the relief of partition of 1/5 share in the entire 'A' schedule property which includes the schedule 'B' property, is not the plaintiff estopped from alleging any exclusive title/claim in the schedule 'B' property?
2. Does the Civil Court have any jurisdiction to grant the relief of permanent injunction as between the co-owners restraining each other from interfering with the others' alleged possession when the plaintiff has filed suit on the case of joint possession?
3. Is the suit not hit by Section 23 of the Hindu Succession Act when the plaintiff being the female member is prohibited from claiming partition of loan dwelling house being the only property for his family?
4. Can the plaintiff split the superstructure into separate units even for claim when the entire superstructure has to be taken as a whole unit for the purpose of claiming any relief under the City Tenants Protection Act against the lessor until the occasion arises?
(extracted as such)
6. Heard both sides.
7. Point Nos.1 and 2 are taken together for discussion as they are inter-linked and inter-woven, inter-connected and entwined with each other.
8. The relationship among the parties is an admitted one. Indubitably and indisputably, the father of the parties to the lis as a lessee entered into the suit property and raised super structure thereon and he started occupying the same. As such, he died leaving behind him his widow and his five children, viz., the plaintiff and the four defendants. Even though D3 contended that a Will was executed in his favour by his father, the said Will was not produced and no evidence was adduced in this regard. As such, both the courts below ignored it correctly.
9. The learned counsel for the appellant/D3 would put forth and set forth his arguments, which could pithily and precisely be set out thus:
(i) There is nothing to indicate and exemplify that the plaintiff raised construction as found set out in the B scheduled property of the plaint in the eastern corner of the suit property. In fact, such super structure was not put up by her and in such a case, her attempt to claim exclusive right over it is a well-neigh impossibility as there was no partition so far effected among the children of the deceased T.K.Pachaiyappa Mudaliar.
(ii) The injunction granted by the trial court and as confirmed by the first appellate court is quite antithetical to the well established principles of law, because one co-owner cannot obtain injunction as against another co-owner and that too in the factual matrix of this case. When there is evidence to show that the plaintiff has been staying in her mother-in-law's house, she cannot claim exclusive right over the B scheduled property and get such an injunction as she obtained before the courts below.
(iii) By virtue of Section 23 of the Hindu Succession Act, the plaintiff, being the female co-owner, cannot disturb the peaceful possession and enjoyment of the suit property by the defendants, wherein the house is situated by seeking partition. The subsequent amendment of the Hindu Succession (Amendment) Act, 2005 whereby Section 23 of the Hindu Succession Act was deleted would have no effect so far this case is concerned because as on the date of presentation of the plaint Section 23 was very much on the Statute book.
(iv) If the plaintiff obtains partition of the suit property by metes and bounds and if one of the co-owners gets a vacant site portion in the suit property, then such co-sharer would be precluded from invoking Section 9 of the City Tenants Protection Act and as such, they would be deprived of their statutory right also.
(v) Without considering all these salient and significant features, the courts below simply accepted the case of the plaintiff and discarded the case of D3, warranting interference in this second appeal.
10. Per contra, in a bid to torpedo and pulverise the arguments as put forth on the side of the appellant/D3, the learned counsel for the first respondent/plaintiff would pyramid her arguments, which could succinctly and precisely be set out thus:
(a) The courts below appropriately and appositely, correctly and legally based on evidence, held that the super structure as found described in the B schedule of the plaint was put up by the plaintiff and both the courts below gave a categorical finding of fact in that regard, warranting no interference in this second appeal, as it is quite obvious and axiomatic that in second appeal the High Court would not interfere with the concurrent finding of facts by both the courts below.
(b) There is a misconception on the part of D3 as though the plaintiff is claiming exclusive right over the B scheduled structure but that is not so. All that she wanted to canvass on her side before the court below, was her right of occupancy in the 'B' scheduled property; that she should not be disturbed and it is not that one co-owner trying to get an injunction as against another co-owner; but she wanted to protect her possession and with that intention alone, she sought for injunction and obtained the same, which need not be disturbed by this court.
(c) Section 23 of the Hindu Succession Act has been deleted from the Statute Book, which has retrospective effect in view of the dicta as found enunciated in the precedent of the Hon'ble Apex Court reported in (2011) 9 SCC 788 [Ganduri Koteshwaramma and another vs. Chakiri Yanadi and another] and also the judgment of this court reported in 2009(2) CTC 130 [M.Revathi vs. R.Alamelu and six others]
(d) The apprehension on the part of D3 that Section 9 of the City Tenants Protection Act cannot be invoked, is only a future possibility and as of now, the court which is hearing the second appeal need not take into account all those facts.
(e) There is nothing to exemplify and point up that there was joint debt repayable by the parties and there is also nothing to connote that D3 discharged the debt, which would enable him to seek for contribution in his favour from the other co-sharers proportionately.
(f) There is no perversity or illegality in the judgments and decrees passed by both the courts below.
Accordingly, she would pray for the dismissal of the second appeal.
11. Indubitably and indisputably, the suit property, being the lease hold property of the father of the plaintiff and the defendants; it is subject to partition at the instance of either of the children. Here, the plaintiff did choose to file the suit for partition, which cannot be found fault with. At this stage, the learned counsel for the appellant/D3 would try to invoke Section 23 of the Hindu Succession Act and highlight that as on the date of filing of the suit, it was an embargo for the plaintiff to seek partition. He would also cite the following decisions:
1. (2009) 6 SCC 99 [G.Sekar vs. Geetha and others]
2. Division Bench Judgment of this court reported in 2010-1-L.W.802 [G.Sekar vs. L.Geetha and others]
Whereas the learned counsel for the first respondent/plaintiff would cite the following decisions:
1. (2011) 9 SCC 788 [Ganduri Koteshwaramma and another vs. Chakiri Yanadi and another]
2. Judgment of this court reported in 2009(2) CTC 130 [M.Revathi vs. R.Alamelu and six others]
It is therefore just and necessary to analyse and consider as to what is the legal position prevailing as of now.
12. No doubt, as on the date of the filing of the suit in the year 1995, Section 23 of the Hindu Succession Act was very much on the Statute Book and now, it is quite obvious that Section 23 of the Hindu Succession Act was deleted. In the Hon'ble Apex Court's decision reported in (2009) 6 SCC 99 [G.Sekar vs. Geetha and others] certain excerpts are worthy of being extracted here under:
"26. Section 23 of the Act has been omitted so as to remove the disability on female heirs contained in that section. It sought to achieve a larger public purpose. If even the disability of a female heir to inherit the equal share of the property together with a male heir so far as joint coparcenary property is concerned has been sought to be removed, we fail to understand as to how such a disability could be allowed to be retained in the statute book in respect of the property which had devolved upon the female heirs in terms of Section 8 of the Act read with the Schedule appended thereto.
27. Restrictions imposed on a right must be construed strictly. In the context of the restrictive right as contained in Section 23 of the Act, it must be held that such restriction was to be put in operation only at the time of partition of the property by metes and bounds, as grant of a preliminary decree would be dependent on the right of a co-sharer in the joint property. Concededly a preliminary decree could be passed declaring each co-sharer to be entitled to 1/5 th share therein in terms of the provisions contained in Section 8 of the Act. 1/5th share in each co-sharer upon death of the predecessor-in-interest of the parties is absolute. They cannot be divested of the said right as the restriction in enjoyment of right by seeking partition by metes and bounds is removed by reason of Section 3 of the 2005 Act.
32. It is trite that although omission of a provision operates as an amendment to the statute but then Section 6 of the General Clauses Act, whereupon reliance has been placed by Mr.Viswanathan, could have been applied provided it takes away somebody's vested right. Restrictive right contained in Section 23 of the Act, in view of our aforementioned discussions, cannot be held to remain continuing despite the 2005 Act.
48. As indicated hereinbefore, the institution of a suit is not barred. What is barred is actual partition by metes and bounds."
A mere running of the eye over those excerpts would highlight and spotlight the fact that absolutely there is no embargo for a lady member to file a suit and seek for preliminary decree for carving out her share from the joint property, even though male members might be in occupation of the dwelling house.
13. As such, in the said decision, the Hon'ble Apex Court adumberated that when the question of dividing the dwelling house by metes and bounds arises, then only the embargo contemplated under Section 23 of the Hindu Succession Act would come into effect. As such, even in the earlier decision, the Hon'ble Apex Court pointed up and showed up that the operation of Section 23 of the Hindu Succession Act would come into vogue only at the time of final decree proceedings.
14. Now, it is quite obvious and axiomatic that so far this case is concerned, final decree has not been passed and the final decree application is only pending and the second appeal is focussed only as against the preliminary decree. In the meanwhile, Section 23 of the Hindu Succession Act itself was deleted from the Statute Book. As such, at the time of passing of the final decree, there would be no embargo of Section 23 of the Hindu Succession Act at all.
15. However, the Division Bench of this court in the case reported in 2010-1-L.W.802 [G.Sekar vs. L.Geetha and others] held thus:
"11. All the above would make it abundantly clear that the operation and application of Section 3 of 2005 Act was only prospective, and the institution of the suit was not barred. But what was barred was the actual partition by metes and bounds, and Section 23 of the Hindu Succession Act as it stood was to be applied on the date of the institution of the suit. Hence the plaintiffs if advised, could file a fresh suit for partition on the strength of the rights already declared in the course of the preliminary decree made in C.S.No.153/96. In view of the above, no application for appointment of Advocate Commissioner for dividing the property by metes and bounds would arise. Hence the order of the learned Single Judge has got to be set aside."
relating to the same matter during the final decree proceedings and gave certain directions to the plaintiff to file a separate suit, but that cannot be an obstacle for the plaintiff herein to press into service; the subsequent decision of the Hon'ble Apex Court reported in (2011) 9 SCC 788 [Ganduri Koteshwaramma and another vs. Chakiri Yanadi and another] held thus:
"11. The new Section 6 provides for parity of rights in the co-parcenary property among male and female members of a joint Hindu family on and from 9.9.2005. The legislature has now conferred substantive right in favour of the daughters. According to the new Section 6, the daughter of a co-parcener becomes a co-parcener by birth in her own rights and liabilities in the same manner as the son. The declaration in Section 6 that the daughter of the co-parcener shall have same rights and liabilities in the co-parcenary property as she would have been a son in unambiguous and unequivocal. Thus on and from 9.9.2005, the daughter is entitled to a share in the ancestral property and is a co-parcener as if she had been a son.
12. The right accrued to a daughter in the property of a joint Hindu family governed by the Mitakshara law, by virtue of the 2005 Amendment Act, is absolute, except in the circumstances provided in the proviso appended to sub-section (1) of Section 6. The excepted categories to which new Section 6 of the 1956 Act is not applicable are two, namely, (i) where the disposition or alienation including any partition has taken place before 20.12.2004; and (ii) where testamentary disposition of property has been made before 20.12.2004. Sub Section (5) of Section 6 leaves no room for doubt as it provides that this section shall not apply to the partition which has been effected before 20.12.2004. For the purposes of new Section 6 it is explained that "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. In light of a clear provision contained in the Explanation appended to sub-section (5) of Section 6, for determining the non-applicability of the section, what is relevant is to find out whether the partition has been effected before 20.12.2004 by deed of partition duly registered under the Registration Act, 1908 or by a decree of a court. In the backdrop of the above legal position with reference to Section 6 brought in the 1956 Act by the 2005 Amendment Act, the question that we have to answer is as to whether the preliminary decree passed by the trial court on 19.03.1999 and amended on 27.09.2003 deprives the appellants of the benefits of the 2005 Amendment Act although final decree for partition has not yet been passed.
13. The legal position is settled that partition of a joint Hindu family can be effected by various modes, inter alia, two of these modes are (one) by a registered instrument of a partition and (two) by a decree of the court. In the present case, admittedly, the partition has not been effected before 20.12.2004 either by a registered instrument of partition or by a decree of the court. The only stage that has reached in the suit for partition filed by Respondent 1 is the determination of shares vide preliminary decree dated 19.3.1999 which came to be amended on 27.09.2003 and the receipt of the report of the Commissioner.
14. A preliminary decree determines the rights and interests of the parties. The suit for partition is not disposed of by passing of the preliminary decree. It is by a final decree that the immovable property of joint Hindu family is partitioned by metes and bounds. After the passing of the preliminary decree, the suit continues until the final decree is passed. If in the interregnum i.e.after passing of the preliminary decree and before the final decree is passed, the events and supervening circumstances occur necessitating change in shares, there is no impediment for the court to amend the preliminary decree or pass another preliminary decree re-determining the rights and interests of the parties having regard to the changed situation."
(ii) This court also in the case reported in 2009(2) CTC 130 [M.Revathi vs. R.Alamelu and six others] has held thus:
"6. At the hearing, the learned counsel for the appellant appropriately and appositely, correctly and convincingly drew the attention of this Court to the recent amendment to the Hindu Succession (Amendment) Act, 2005 (39 of 2005) deleting Section 23 of the Act. No doubt the amendment Act shall have prospective effect, but practically if the matter is viewed, it is clear that as per the Hindu Succession (Amendment) Act, 2005 the plaintiff is entitled to partition of the dwelling house property also and such an amendment has come into vogue during the pendency of the appeal. The appeal is deemed to be in continuation of the suit proceedings. It would be a mere hyper technicality if the appellant/plaintiff is driven to the extent of filing a fresh suit invoking the said recent Hindu Succession (Amendment) Act 2005 (39 of 2005) and in such a case, I am having no hesitation in construing that in this case the erstwhile Section 23 is having no application and accordingly partition could be ordered in respect of the 1/8th share of the plaintiff."
A mere running of the eye over the recent decision of the Hon'ble Apex Court would leave no doubt in the mind of this court that before passing of the final decree, what are all the changes effected as per the Hindu Succession (Amendment) Act, 2005 would be applicable to pending proceedings in a partition suit.
16. I recollect and call up the following maxim - judicia posteriora sunt in lege fortiora - The later decisions are stronger in law. The latest precedent of the Hon'ble Apex Court would prevail over all the other decisions. As such, I am of the considered opinion, that it is no more res integra that even in pending matters, before the passing of the final decree the embargo as contained in Section 23 of the Hindu Succession Act, need not be taken note of as it is deemed to have been deleted even in respect of pending proceedings.
17. Regarding the probability of invoking Section 9 of the City Tenants Protection Act is concerned, I would like to observe that this is not the time at which that should be considered. It is a common or garden principle of law that courts are expected to decide issues which have arisen and not issues, which might arise at a future date. It is only the apprehension on the part of D3 that at future date when the real owner might try to evict them, they might face difficulty in invoking Section 9 of the City Tenants' Protection Act.
18. I leave that issue open and at the appropriate stage, it is open for the parties to work out their remedy.
19. Regarding the expenses spent allegedly by the plaintiff for raising the super structure in the B scheduled property, I would like to point out that the learned counsel for the plaintiff without minching words and pulling no punches, would unambiguously and unequivocally submit before this court that her client herself does not claim any exclusive right over the B scheduled property on the ground that she invested money in raising super structure in the common property, but what she would try to canvass and pray before the court is that her right of enjoyment might not be disturbed by D3.
20. Once such a stand has been taken categorically by the plaintiff, it would become merely of academic interest as to who actually spent money for raising the super structure. Therefore, I make the point clear that the super structure described in the B scheduled property is the common property along with the rest of the property in the A scheduled property of all the co-sharers.
21. The learned counsel for the plaintiff would submit that because of the trouble created by D3, she was constrained to lock the B Scheduled super structure leaving her belongings there and take asylum in a rented house for which the learned counsel for D3 would submit that the plaintiff cannot try to assert her exclusive right over the B scheduled property to the exclusion of D3 and it should be available for the enjoyment of all the co-sharers.
22. This is really a ticklish problem. Even in the undivided property after putting some structure, if one co-owner is in occupation of a portion exclusively, the privacy and the belongings of such co-sharer should be protected. No doubt, the principle "all for each and each for all" does not mean that if one co-owner is occupying one room and another co-owner is occupying another room in a joint property and all of a sudden one co-owner could barge into another co-owner's room and that would lead to precarious situation. It is one thing to say that one co-owner cannot get injunction against another co-owner from enjoying the property; but yet it is another proposition to say that one co-owner pending settlement of disputes before the court, should not dispossess the other co-owner. Certainly, one co-owner cannot physically prevent the other co-owner the right of ingress and egress over the suit property.
23. The plaintiff herself submits that as of now, the B scheduled property is kept under her lock and key and her belongings are in it.
24. The learned counsel for the first respondent/plaintiff would state that she might be allowed to reside in the property as both the courts below gave such a finding. Here the B scheduled property is measuring only an extent of 18 x 12 feet and in such a case, if D3 and plaintiff are permitted to reside in it that will lead to lot of discomfitures and difficulties and there is nothing to indicate that D3 was or is in physical occupation of the "B" Scheduled property. Wherefore, the plaintiff can reside in the B scheduled property; however, that would not in any way enure to her benefit to assert her right during the final decree proceedings that because of her residence in the B scheduled property, necessarily it should be allotted in her favour. There is no going back on the fact that the B scheduled property is also the common property of all the co-sharers.
25. Accordingly, the substantial questions of law are answered to the following effect:
(i) The substantial question of law No.1 is decided to the effect that the plaintiff is not the owner of the 'B' scheduled property.
(ii) The substantial question of law No.2 is decided to the effect that the plaintiff is only permitted to occupy the 'B' scheduled property without any right to claim exclusive ownership during the final decree proceedings and that D3 is having right of inspection over the suit property.
(iii) The substantial question of law No.3 is decided to the effect that Section 23 of the Hindu Succession Act is not an embargo for the plaintiff to claim partition.
(iv) The substantial question of law No.4 is decided to the effect that the issue relating to Section 9 of the City Tenants' Protection Act is not to be decided in this case.
26. I would like to disambiguate the ambiguity, if any by accentuating and actuating that it is open for D3 to adduce additional evidence along with the evidence already adduced during the final decree proceedings relating to the jointness of the debt concerned and the discharge of the same by D3 alone. In such an event, it is open for the plaintiff to adduce rebuttal evidence. In the event of the court coming to the conclusion that there were joint debts and that they were discharged only by D3, there is no embargo for the court to mandate that other co-sharers to share the debt proportionately.
27. With the above direction, this second appeal is disposed of. No costs.
vj2
To
1. The III Additional Judge, City Civil Court, Chennai
2. The VI Assistant Judge, City Civil Court,
Chennai
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:12.10.2012
Coram:
THE HONOURABLE MR.JUSTICE G.RAJASURIA
S.A.No.1403 of 2005
T.P.Vadivelu .. Appellant
vs.
1. S.Padmavathy
2. T.P.Saravanan
3. T.P.Jagannathan
4. T.P.Natarajan .. Respondents
This second appeal is filed against the judgment and decree dated 07.04.2005 passed by the learned III Additional Judge, City Civil Court, Chennai in A.S.No.307 of 2004 confirming the preliminary decree dated 05.02.2004 passed by the learned VI Assistant Judge, City Civil Court, Chennai in O.S.No.6174 of 1995.
For Appellant : Mr.K.Hariharan
For Respondent 1 : Mrs.Thamizhselvi
for M/s.P.Devdas Associates
R2 to R4 : Remained exparte in the lower
court itself.
J U D G M E N T
This second appeal is focussed by D3, animadverting upon the judgement and decree dated 07.04.2005 passed by the learned III Additional Judge, City Civil Court, Chennai in A.S.No.307 of 2004 confirming the preliminary decree dated 05.02.2004 passed by the learned VI Assistant Judge, City Civil Court, Chennai in O.S.No.6174 of 1995.
2. The parties are referred to here under according to their litigative status and ranking before the trial Court.
3. Compendiously and concisely, the germane facts absolutely necessary for the disposal of this Second Appeal would run thus:
a] The first respondent/plaintiff filed the suit for partition seeking the following reliefs:
- To pass a judgment and decree as follows:
(i) declaring the plaintiff is entitled to 1/5 th share in premises bearing Old Door No.60, New Door No.27, Kannaiah Chetty Garden 3rd Street, Peravallur, Madras 600 082 more fully described in the plaint A schedule property here under and plaint B schedule property in equity.
(ii) to appoint an Advocate Commissioner to divide and allot the plaintiff's 1/5 th share in the plaint A schedule property and if the premises is not capable of division direct the Advocate Commissioner to sell the plaint A schedule property and pay 1/5 th share out of the sale proceeds.
(iii) for a permanent injunction in favour of the plaintiff in respect of the B schedule property in premises No.Old No.60, New No.27, Kannaiah Chetty Garden 3rd Street, Peravallur Madras 600 082 and more fully described in the plaint B schedule property restraining the defendants their men, agents, servants person or person claiming through or under them from interfering with the plaintiff's peaceful possession and enjoyment of the B schedule property and
(iv) for costs,
(extracted as such)
in respect of the lease hold right over the suit property found described in the schedule of the plaint.
b] The averments in the plaint could succinctly and precisely be set out thus:
The plaintiff is the sister and the defendants are her brothers, all being the children of late T.K.Pachaiyappa Mudaliar, who obtained the suit property on lease and started enjoying it during his life time.
In fact, the suit property belongs to the estate of Ramaiah Naidu. The said Pachaiyappa Mudaliar had put up super-structure on the land taken on lease and he started enjoying it with his family members. He died intestate on 18.12.1972 leaving behind his wife Govindammal and his five children, who are the plaintiff and the defendants to succeed his rights over the suit property.
The children of the Pachaiyappa Mudaliar were minors at the time of his death.
Subsequently, Govindammal also died intestate on 19.02.1984. The plaintiff was living with the defendants till 1987 and thereafter, she went to her mother-in-law's house with her husband and started living there.
She had put up the tiled super structure measuring 18' East to West and 12' feet North to South out of her own funds in the eastern corner of the plaint scheduled property for her own residence with the concurrence of the defendants from the month of February 1994 onwards and she has been in possession and enjoyment of the said portion, which is described as the B schedule in the plaint.
While so, D3 attempted to dispossess her from the suit scheduled property.
Thereupon,
dispute erupted, which resulted in the filing of the suit claiming 1/5 th share in the entire A scheduled property.
c] Per contra, denying and refuting, challenging and impugning the averments/allegations in the plaint, D3 filed the written statement, which could tersely and briefly be set out thus:
The suit is not at all maintainable. She had not put up the super structure in the B scheduled property as described in the plaint. The plaintiff is not residing in the B scheduled property described in the plaint, which forms part of the A scheduled property; but she is actually residing at No.9, Thiru.Vi.Ka.Street, Vyasarpadi, Chennai 600 039.
T.K.Pachaiyappa Mudaliar died after executing the Will dated 01.06.1972 in favour of D3, who discharged the mortgage debt incurred by his father.
Accordingly, he prayed for the dismissal of the suit.
d] The other defendants remained exparte.
e] Whereupon issues were framed.
f] Up went the trial, wherein the plaintiff examined herself as PW1 along with P.W.2 and marked Exs.A1 to A20. The third defendant/Vadivelu examined himself as D.W.1 and marked Exs.B1 to B6.
g] Ultimately the trial court decreed the suit granting and passed the preliminary decree allotting 1/5 th share in favour of the plaintiff and also granting injunction in favour of the plaintiff not to disturb her possession in respect of the B scheduled property of the plaint.
h] Being aggrieved by and dissatisfied with the same, D3 filed the appeal, for nothing but to be dismissed by the first appellate court confirming the judgment and decree of the trial court.
4. Challenging and impugning the judgments and decrees of both the Courts below, this Second Appeal has been filed by D3 on various grounds.
5. My learned predecessor at the time of admitting the second appeal, framed the following substantial questions of law.
1. Admittedly, when the plaintiff has asked for the relief of partition of 1/5 share in the entire 'A' schedule property which includes the schedule 'B' property, is not the plaintiff estopped from alleging any exclusive title/claim in the schedule 'B' property?
2. Does the Civil Court have any jurisdiction to grant the relief of permanent injunction as between the co-owners restraining each other from interfering with the others' alleged possession when the plaintiff has filed suit on the case of joint possession?
3. Is the suit not hit by Section 23 of the Hindu Succession Act when the plaintiff being the female member is prohibited from claiming partition of loan dwelling house being the only property for his family?
4. Can the plaintiff split the superstructure into separate units even for claim when the entire superstructure has to be taken as a whole unit for the purpose of claiming any relief under the City Tenants Protection Act against the lessor until the occasion arises?
(extracted as such)
6. Heard both sides.
7. Point Nos.1 and 2 are taken together for discussion as they are inter-linked and inter-woven, inter-connected and entwined with each other.
8. The relationship among the parties is an admitted one. Indubitably and indisputably, the father of the parties to the lis as a lessee entered into the suit property and raised super structure thereon and he started occupying the same. As such, he died leaving behind him his widow and his five children, viz., the plaintiff and the four defendants. Even though D3 contended that a Will was executed in his favour by his father, the said Will was not produced and no evidence was adduced in this regard. As such, both the courts below ignored it correctly.
9. The learned counsel for the appellant/D3 would put forth and set forth his arguments, which could pithily and precisely be set out thus:
(i) There is nothing to indicate and exemplify that the plaintiff raised construction as found set out in the B scheduled property of the plaint in the eastern corner of the suit property. In fact, such super structure was not put up by her and in such a case, her attempt to claim exclusive right over it is a well-neigh impossibility as there was no partition so far effected among the children of the deceased T.K.Pachaiyappa Mudaliar.
(ii) The injunction granted by the trial court and as confirmed by the first appellate court is quite antithetical to the well established principles of law, because one co-owner cannot obtain injunction as against another co-owner and that too in the factual matrix of this case. When there is evidence to show that the plaintiff has been staying in her mother-in-law's house, she cannot claim exclusive right over the B scheduled property and get such an injunction as she obtained before the courts below.
(iii) By virtue of Section 23 of the Hindu Succession Act, the plaintiff, being the female co-owner, cannot disturb the peaceful possession and enjoyment of the suit property by the defendants, wherein the house is situated by seeking partition. The subsequent amendment of the Hindu Succession (Amendment) Act, 2005 whereby Section 23 of the Hindu Succession Act was deleted would have no effect so far this case is concerned because as on the date of presentation of the plaint Section 23 was very much on the Statute book.
(iv) If the plaintiff obtains partition of the suit property by metes and bounds and if one of the co-owners gets a vacant site portion in the suit property, then such co-sharer would be precluded from invoking Section 9 of the City Tenants Protection Act and as such, they would be deprived of their statutory right also.
(v) Without considering all these salient and significant features, the courts below simply accepted the case of the plaintiff and discarded the case of D3, warranting interference in this second appeal.
10. Per contra, in a bid to torpedo and pulverise the arguments as put forth on the side of the appellant/D3, the learned counsel for the first respondent/plaintiff would pyramid her arguments, which could succinctly and precisely be set out thus:
(a) The courts below appropriately and appositely, correctly and legally based on evidence, held that the super structure as found described in the B schedule of the plaint was put up by the plaintiff and both the courts below gave a categorical finding of fact in that regard, warranting no interference in this second appeal, as it is quite obvious and axiomatic that in second appeal the High Court would not interfere with the concurrent finding of facts by both the courts below.
(b) There is a misconception on the part of D3 as though the plaintiff is claiming exclusive right over the B scheduled structure but that is not so. All that she wanted to canvass on her side before the court below, was her right of occupancy in the 'B' scheduled property; that she should not be disturbed and it is not that one co-owner trying to get an injunction as against another co-owner; but she wanted to protect her possession and with that intention alone, she sought for injunction and obtained the same, which need not be disturbed by this court.
(c) Section 23 of the Hindu Succession Act has been deleted from the Statute Book, which has retrospective effect in view of the dicta as found enunciated in the precedent of the Hon'ble Apex Court reported in (2011) 9 SCC 788 [Ganduri Koteshwaramma and another vs. Chakiri Yanadi and another] and also the judgment of this court reported in 2009(2) CTC 130 [M.Revathi vs. R.Alamelu and six others]
(d) The apprehension on the part of D3 that Section 9 of the City Tenants Protection Act cannot be invoked, is only a future possibility and as of now, the court which is hearing the second appeal need not take into account all those facts.
(e) There is nothing to exemplify and point up that there was joint debt repayable by the parties and there is also nothing to connote that D3 discharged the debt, which would enable him to seek for contribution in his favour from the other co-sharers proportionately.
(f) There is no perversity or illegality in the judgments and decrees passed by both the courts below.
Accordingly, she would pray for the dismissal of the second appeal.
11. Indubitably and indisputably, the suit property, being the lease hold property of the father of the plaintiff and the defendants; it is subject to partition at the instance of either of the children. Here, the plaintiff did choose to file the suit for partition, which cannot be found fault with. At this stage, the learned counsel for the appellant/D3 would try to invoke Section 23 of the Hindu Succession Act and highlight that as on the date of filing of the suit, it was an embargo for the plaintiff to seek partition. He would also cite the following decisions:
1. (2009) 6 SCC 99 [G.Sekar vs. Geetha and others]
2. Division Bench Judgment of this court reported in 2010-1-L.W.802 [G.Sekar vs. L.Geetha and others]
Whereas the learned counsel for the first respondent/plaintiff would cite the following decisions:
1. (2011) 9 SCC 788 [Ganduri Koteshwaramma and another vs. Chakiri Yanadi and another]
2. Judgment of this court reported in 2009(2) CTC 130 [M.Revathi vs. R.Alamelu and six others]
It is therefore just and necessary to analyse and consider as to what is the legal position prevailing as of now.
12. No doubt, as on the date of the filing of the suit in the year 1995, Section 23 of the Hindu Succession Act was very much on the Statute Book and now, it is quite obvious that Section 23 of the Hindu Succession Act was deleted. In the Hon'ble Apex Court's decision reported in (2009) 6 SCC 99 [G.Sekar vs. Geetha and others] certain excerpts are worthy of being extracted here under:
"26. Section 23 of the Act has been omitted so as to remove the disability on female heirs contained in that section. It sought to achieve a larger public purpose. If even the disability of a female heir to inherit the equal share of the property together with a male heir so far as joint coparcenary property is concerned has been sought to be removed, we fail to understand as to how such a disability could be allowed to be retained in the statute book in respect of the property which had devolved upon the female heirs in terms of Section 8 of the Act read with the Schedule appended thereto.
27. Restrictions imposed on a right must be construed strictly. In the context of the restrictive right as contained in Section 23 of the Act, it must be held that such restriction was to be put in operation only at the time of partition of the property by metes and bounds, as grant of a preliminary decree would be dependent on the right of a co-sharer in the joint property. Concededly a preliminary decree could be passed declaring each co-sharer to be entitled to 1/5 th share therein in terms of the provisions contained in Section 8 of the Act. 1/5th share in each co-sharer upon death of the predecessor-in-interest of the parties is absolute. They cannot be divested of the said right as the restriction in enjoyment of right by seeking partition by metes and bounds is removed by reason of Section 3 of the 2005 Act.
32. It is trite that although omission of a provision operates as an amendment to the statute but then Section 6 of the General Clauses Act, whereupon reliance has been placed by Mr.Viswanathan, could have been applied provided it takes away somebody's vested right. Restrictive right contained in Section 23 of the Act, in view of our aforementioned discussions, cannot be held to remain continuing despite the 2005 Act.
48. As indicated hereinbefore, the institution of a suit is not barred. What is barred is actual partition by metes and bounds."
A mere running of the eye over those excerpts would highlight and spotlight the fact that absolutely there is no embargo for a lady member to file a suit and seek for preliminary decree for carving out her share from the joint property, even though male members might be in occupation of the dwelling house.
13. As such, in the said decision, the Hon'ble Apex Court adumberated that when the question of dividing the dwelling house by metes and bounds arises, then only the embargo contemplated under Section 23 of the Hindu Succession Act would come into effect. As such, even in the earlier decision, the Hon'ble Apex Court pointed up and showed up that the operation of Section 23 of the Hindu Succession Act would come into vogue only at the time of final decree proceedings.
14. Now, it is quite obvious and axiomatic that so far this case is concerned, final decree has not been passed and the final decree application is only pending and the second appeal is focussed only as against the preliminary decree. In the meanwhile, Section 23 of the Hindu Succession Act itself was deleted from the Statute Book. As such, at the time of passing of the final decree, there would be no embargo of Section 23 of the Hindu Succession Act at all.
15. However, the Division Bench of this court in the case reported in 2010-1-L.W.802 [G.Sekar vs. L.Geetha and others] held thus:
"11. All the above would make it abundantly clear that the operation and application of Section 3 of 2005 Act was only prospective, and the institution of the suit was not barred. But what was barred was the actual partition by metes and bounds, and Section 23 of the Hindu Succession Act as it stood was to be applied on the date of the institution of the suit. Hence the plaintiffs if advised, could file a fresh suit for partition on the strength of the rights already declared in the course of the preliminary decree made in C.S.No.153/96. In view of the above, no application for appointment of Advocate Commissioner for dividing the property by metes and bounds would arise. Hence the order of the learned Single Judge has got to be set aside."
relating to the same matter during the final decree proceedings and gave certain directions to the plaintiff to file a separate suit, but that cannot be an obstacle for the plaintiff herein to press into service; the subsequent decision of the Hon'ble Apex Court reported in (2011) 9 SCC 788 [Ganduri Koteshwaramma and another vs. Chakiri Yanadi and another] held thus:
"11. The new Section 6 provides for parity of rights in the co-parcenary property among male and female members of a joint Hindu family on and from 9.9.2005. The legislature has now conferred substantive right in favour of the daughters. According to the new Section 6, the daughter of a co-parcener becomes a co-parcener by birth in her own rights and liabilities in the same manner as the son. The declaration in Section 6 that the daughter of the co-parcener shall have same rights and liabilities in the co-parcenary property as she would have been a son in unambiguous and unequivocal. Thus on and from 9.9.2005, the daughter is entitled to a share in the ancestral property and is a co-parcener as if she had been a son.
12. The right accrued to a daughter in the property of a joint Hindu family governed by the Mitakshara law, by virtue of the 2005 Amendment Act, is absolute, except in the circumstances provided in the proviso appended to sub-section (1) of Section 6. The excepted categories to which new Section 6 of the 1956 Act is not applicable are two, namely, (i) where the disposition or alienation including any partition has taken place before 20.12.2004; and (ii) where testamentary disposition of property has been made before 20.12.2004. Sub Section (5) of Section 6 leaves no room for doubt as it provides that this section shall not apply to the partition which has been effected before 20.12.2004. For the purposes of new Section 6 it is explained that "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. In light of a clear provision contained in the Explanation appended to sub-section (5) of Section 6, for determining the non-applicability of the section, what is relevant is to find out whether the partition has been effected before 20.12.2004 by deed of partition duly registered under the Registration Act, 1908 or by a decree of a court. In the backdrop of the above legal position with reference to Section 6 brought in the 1956 Act by the 2005 Amendment Act, the question that we have to answer is as to whether the preliminary decree passed by the trial court on 19.03.1999 and amended on 27.09.2003 deprives the appellants of the benefits of the 2005 Amendment Act although final decree for partition has not yet been passed.
13. The legal position is settled that partition of a joint Hindu family can be effected by various modes, inter alia, two of these modes are (one) by a registered instrument of a partition and (two) by a decree of the court. In the present case, admittedly, the partition has not been effected before 20.12.2004 either by a registered instrument of partition or by a decree of the court. The only stage that has reached in the suit for partition filed by Respondent 1 is the determination of shares vide preliminary decree dated 19.3.1999 which came to be amended on 27.09.2003 and the receipt of the report of the Commissioner.
14. A preliminary decree determines the rights and interests of the parties. The suit for partition is not disposed of by passing of the preliminary decree. It is by a final decree that the immovable property of joint Hindu family is partitioned by metes and bounds. After the passing of the preliminary decree, the suit continues until the final decree is passed. If in the interregnum i.e.after passing of the preliminary decree and before the final decree is passed, the events and supervening circumstances occur necessitating change in shares, there is no impediment for the court to amend the preliminary decree or pass another preliminary decree re-determining the rights and interests of the parties having regard to the changed situation."
(ii) This court also in the case reported in 2009(2) CTC 130 [M.Revathi vs. R.Alamelu and six others] has held thus:
"6. At the hearing, the learned counsel for the appellant appropriately and appositely, correctly and convincingly drew the attention of this Court to the recent amendment to the Hindu Succession (Amendment) Act, 2005 (39 of 2005) deleting Section 23 of the Act. No doubt the amendment Act shall have prospective effect, but practically if the matter is viewed, it is clear that as per the Hindu Succession (Amendment) Act, 2005 the plaintiff is entitled to partition of the dwelling house property also and such an amendment has come into vogue during the pendency of the appeal. The appeal is deemed to be in continuation of the suit proceedings. It would be a mere hyper technicality if the appellant/plaintiff is driven to the extent of filing a fresh suit invoking the said recent Hindu Succession (Amendment) Act 2005 (39 of 2005) and in such a case, I am having no hesitation in construing that in this case the erstwhile Section 23 is having no application and accordingly partition could be ordered in respect of the 1/8th share of the plaintiff."
A mere running of the eye over the recent decision of the Hon'ble Apex Court would leave no doubt in the mind of this court that before passing of the final decree, what are all the changes effected as per the Hindu Succession (Amendment) Act, 2005 would be applicable to pending proceedings in a partition suit.
16. I recollect and call up the following maxim - judicia posteriora sunt in lege fortiora - The later decisions are stronger in law. The latest precedent of the Hon'ble Apex Court would prevail over all the other decisions. As such, I am of the considered opinion, that it is no more res integra that even in pending matters, before the passing of the final decree the embargo as contained in Section 23 of the Hindu Succession Act, need not be taken note of as it is deemed to have been deleted even in respect of pending proceedings.
17. Regarding the probability of invoking Section 9 of the City Tenants Protection Act is concerned, I would like to observe that this is not the time at which that should be considered. It is a common or garden principle of law that courts are expected to decide issues which have arisen and not issues, which might arise at a future date. It is only the apprehension on the part of D3 that at future date when the real owner might try to evict them, they might face difficulty in invoking Section 9 of the City Tenants' Protection Act.
18. I leave that issue open and at the appropriate stage, it is open for the parties to work out their remedy.
19. Regarding the expenses spent allegedly by the plaintiff for raising the super structure in the B scheduled property, I would like to point out that the learned counsel for the plaintiff without minching words and pulling no punches, would unambiguously and unequivocally submit before this court that her client herself does not claim any exclusive right over the B scheduled property on the ground that she invested money in raising super structure in the common property, but what she would try to canvass and pray before the court is that her right of enjoyment might not be disturbed by D3.
20. Once such a stand has been taken categorically by the plaintiff, it would become merely of academic interest as to who actually spent money for raising the super structure. Therefore, I make the point clear that the super structure described in the B scheduled property is the common property along with the rest of the property in the A scheduled property of all the co-sharers.
21. The learned counsel for the plaintiff would submit that because of the trouble created by D3, she was constrained to lock the B Scheduled super structure leaving her belongings there and take asylum in a rented house for which the learned counsel for D3 would submit that the plaintiff cannot try to assert her exclusive right over the B scheduled property to the exclusion of D3 and it should be available for the enjoyment of all the co-sharers.
22. This is really a ticklish problem. Even in the undivided property after putting some structure, if one co-owner is in occupation of a portion exclusively, the privacy and the belongings of such co-sharer should be protected. No doubt, the principle "all for each and each for all" does not mean that if one co-owner is occupying one room and another co-owner is occupying another room in a joint property and all of a sudden one co-owner could barge into another co-owner's room and that would lead to precarious situation. It is one thing to say that one co-owner cannot get injunction against another co-owner from enjoying the property; but yet it is another proposition to say that one co-owner pending settlement of disputes before the court, should not dispossess the other co-owner. Certainly, one co-owner cannot physically prevent the other co-owner the right of ingress and egress over the suit property.
23. The plaintiff herself submits that as of now, the B scheduled property is kept under her lock and key and her belongings are in it.
24. The learned counsel for the first respondent/plaintiff would state that she might be allowed to reside in the property as both the courts below gave such a finding. Here the B scheduled property is measuring only an extent of 18 x 12 feet and in such a case, if D3 and plaintiff are permitted to reside in it that will lead to lot of discomfitures and difficulties and there is nothing to indicate that D3 was or is in physical occupation of the "B" Scheduled property. Wherefore, the plaintiff can reside in the B scheduled property; however, that would not in any way enure to her benefit to assert her right during the final decree proceedings that because of her residence in the B scheduled property, necessarily it should be allotted in her favour. There is no going back on the fact that the B scheduled property is also the common property of all the co-sharers.
25. Accordingly, the substantial questions of law are answered to the following effect:
(i) The substantial question of law No.1 is decided to the effect that the plaintiff is not the owner of the 'B' scheduled property.
(ii) The substantial question of law No.2 is decided to the effect that the plaintiff is only permitted to occupy the 'B' scheduled property without any right to claim exclusive ownership during the final decree proceedings and that D3 is having right of inspection over the suit property.
(iii) The substantial question of law No.3 is decided to the effect that Section 23 of the Hindu Succession Act is not an embargo for the plaintiff to claim partition.
(iv) The substantial question of law No.4 is decided to the effect that the issue relating to Section 9 of the City Tenants' Protection Act is not to be decided in this case.
26. I would like to disambiguate the ambiguity, if any by accentuating and actuating that it is open for D3 to adduce additional evidence along with the evidence already adduced during the final decree proceedings relating to the jointness of the debt concerned and the discharge of the same by D3 alone. In such an event, it is open for the plaintiff to adduce rebuttal evidence. In the event of the court coming to the conclusion that there were joint debts and that they were discharged only by D3, there is no embargo for the court to mandate that other co-sharers to share the debt proportionately.
27. With the above direction, this second appeal is disposed of. No costs.
vj2
To
1. The III Additional Judge, City Civil Court, Chennai
2. The VI Assistant Judge, City Civil Court,
Chennai
