H. Vasanthi vs A. Santha (Dead) Through Lrs. And Ors.

H. VASANTHI … APPELLANT(S)

VERSUS

A. SANTHA (DEAD) THROUGH LRS. AND OTHERS … RESPONDENT (S)

J U D G M E N T

S.V.N. BHATTI, J.

1. We have heard learned Senior Counsel Shri

A.N. Venugopala Gowda and Counsel Shri P.B.

Suresh for the appellant and the respondents,

respectively.

2. Plaintiff in OS No. 746 of 1996 City Civil Signature Not Verified Digitally signed by

Court, Chennai, is the appellant. OS No. 746 of SNEHA DAS Date: 2023.08.16 17:03:02 IST Reason:

1996 was filed for the relief of declaration 1 that the plaintiff with Defendant Nos. 1 and 2

is a coparcener by amended Section 29A of the

Hindu Succession Act, 1956 (Tamil Nadu

Amendment Act). Therefore, the plaintiff has a

right to a one-third share in the suit-

scheduled property at 24/1, Gomathy

Narayanaswamy Road, T-Nagar, Madras-600017. She

prayed for an injunction, restraining Defendant

Nos. 1 and 2 etc., from disposing of one-third

part claimed by the plaintiff to third parties.

The plaintiff also prayed for partition and

separate possession of one-third in the plaint

schedule through a preliminary and a final

Decree. The prayers in the plaint are

comprehensive enough for declaration,

injunction, partition, and separate possession

for the plaintiff’s one-third share in the

plaint schedule property. To avoid repetitive

description of the property, which may arise

2 during and in the course of consideration by

us, we excerpt the schedule as under:

Plaint Schedule

“Outhouse with ground floor and first floor and ground land of a total extent of 111/3 ground (one ground and 800 sq. ft) forming part of Old No. 62 Gomathy Narayanaswamy road and now in New No. 24/1, Gomathy Narayanaswamy Road, T. Nagar, Madras-17 within the regn. District of Madras-Chingleput Sub Registration District of T.Nagar, bearing S.No. 59 part T.S. No. 8623 (part) bounded on the North by G.N. Chetty Road and U. Sripathi Rao's property on the south by house which belongs to Dr. Harischand, on the east by house in Boag Road, No. 20, belonging to Nayudamma and No. 21 belonging to B.A. Kukillaya and Sripathi Rao's property and on the west by common entrance from Gomathy Narayanaswamy Road.”

3. Defendants 1 and 2 are the father and brother

of the plaintiff. The third Defendant is the

purchaser of the plaint schedule property from

3 Defendants 1 and 2 through the process of law.

The following chronology reveals the narrow

brief controversy at issue.

4. The plaintiff’s case is that the grandfather

of the plaintiff Dr H. Venkat Rao purchased the

plaint schedule property together with the

property on the southern side of the plaint

schedule property through a registered sale

deed dated 13.09.1924. The first defendant is

the only son of Dr H. Venkat Rao and, being so,

inherited the property as Joint Hindu Family

Property. The second defendant is the son of

the first defendant, and the plaintiff is one

of the daughters of the first defendant. The

admitted circumstances are that on 18.07.1974,

the first defendant and the second defendant

entered into an agreement of sale with the

third defendant. The third defendant, enforcing

the rights under the agreement dated

4 18.07.1974, filed OS No. 2595 of 1981 before

the City Civil Court, Madras, for specific

performance. On 11.08.1982, OS No. 2595 of 1981

was dismissed. The third defendant, aggrieved

by the Judgment and Decree dated 11.08.1982,

filed Appeal No. 165 of 1984 before the High

Court of Judicature at Madras. On 13.03.1995,

Appeal No. 165 of 1984 was allowed and specific

performance of agreement of sale dated

18.07.1974 was granted by the High Court of

Judicature at Madras.

SLP (C) No. 10689 of 1995 filed by

Defendants 1 and 2 was dismissed on 12.05.1995.

In the interregnum and viz., the plaintiff,

Defendants 1 and 2 and the other sisters

entered into a partial partition (Exhibit-A3)

dated 24.02.1980. What is essential is that

Exhibit A3 describes the property covered by

the said Door Number; the partial division or

5 partition was effected for the property on the

southern side, leaving open space for ingress

and egress. On 25.03.1989, Section 29A of the

Hindu Succession Act (Tamil Nadu Amendment

Act), 1989confers on the unmarried daughters

the status of coparceners and right in

coparcenary property for partition, etc.

5. On 07.07.1989, the plaintiff got married,

and in June 1995, C.S. No. 953 of 1995 was

filed before the High Court of Judicature at

Madras, transferred and renumbered as OS No.

746 of 1996 before the City Civil Court,

Chennai. The plaintiff adverting to the above

sequence of events accepts the benefit under

the partial partition deed dated 24.02.1980 and

rests her claim for partition of the plaint

schedule property. The gist of the plaintiff’s

case is stated thus:

6

a. The plaint schedule property is the

Joint Hindu Family Property,

b. By the Tamil Nadu State Amendment, the

plaintiff has become a coparcener,

c. The plaintiff, being a coparcener, is

entitled to equal share in the plaint

schedule property with her father and

brother,

d. The plaintiff since has got the status

of coparcener w.e.f. 25.03.1989, when

Appeal No. 165 of 1984 (High Court of

Judicature at Madras) was pending,

the rights of the plaintiff in plaint

schedule property remained

undisturbed by the Judgment and

Decree in Appeal No. 165 of 1984 as

confirmed in SLP (C) No. 10689 of

1995.

7

6. In substance, the plaintiff's case is that

the plaint schedule property is available for

partition. Therefore, Defendants 1 and 2,

i.e., the father and brother of the plaintiff,

cannot and could not transfer the right and

entitlement of the plaintiff. Hence, the suit

for partition. Defendants 1 and 2, having

suffered the Decree for Specific Performance,

have not opposed the suit prayer. The third

defendant contested the suit. The case of the

third defendant is that the claim for

partition and separate possession of the

plaint schedule is unavailable even on the

date of coming into force of the State

Amendment. As the coparceners, the plaint

schedule cannot and could not be treated as a

property held by the Hindu Undivided Family of

the plaintiff and Defendants 1 and 2. Without

8 assailing the sale deed executed in favour of

the third defendant, the plaintiff could not

have asked for partition simpliciter of any

right much less than one-third. The prayers,

as made, substantially negate the adjudication

in Appeal No. 165 of 1984 as confirmed in SLP

(C) No. 10689 of 1995. In the trial, PE1 to

PE3 were marked for the plaintiff, and the

plaintiff was examined as PW1, and Defendants

examined DW1 and DW2.

7. The Trial Court framed the following:

“1. Whether the plaintiff was a member of a joint family in accordance with suit property?

2. whether the plaintiff was debarred from demanding share in the suit property?

3. whether a partition was carried out in the family even on 24.2.80 and consented that the suit property was owned by 1st and 2nd defendants.

4. Whether the plaintiff is eligible for relief of declaration, relief of 9 injunction and relief of partition as per her demand?

5. Which relief can be granted to plaintiff?”

8. The Trial Court dealt with all the issues and

answered in favour of contesting the third

defendant; hence, OS No. 2595 of 1981 was

dismissed. The plaintiff, aggrieved by the

dismissal of the Suit, filed A.S. No. 77 of

1998 before the High Court of Judicature at

Madras, and through the impugnment Judgment,

A.S. No. 77 of 1998 stood dismissed. Hence, by

Special Leave, the present Civil Appeal.

9. Learned Senior Counsel contends that the

property covered by Door Number 24/1, Gomathy

Narayanaswamy Road, T-Nagar, Madras-600017,

was purchased by the plaintiff's grandfather.

The first defendant inherited the plaint

schedule. The inherited property has the

10 character of coparcenary or Hindu Undivided

Family Property. On 25.03.1989, Section 29A of

the State Amendment conferred on the unmarried

daughters status of a coparcenary. In law, a

coparcener is entitled to claim for partition

and converse of the said right because

Defendants 1 and 2 cannot, in law, convey one-

third of the plaintiff’s share in the

coparcenary in favour of the third defendant.

The execution of the sale deed, even assuming

after the dismissal of the SLP by this Court,

cannot and could not affect the right of the

plaintiff in the plaint schedule property. In

law, there is no prohibition for entering into

and executing a partial deed of partition by

the coparceners. The registered partition deed

dated 24.02.1980 (Exhibit-A3) does not deal

with the plaint schedule property and,

therefore, the Judgments impugned in the Civil

11 Appeal, per se, are illegal and are contrary

to the binding precedents reported in Vineeta

Sharma v. Rakesh Sharma1, T. Ravi and another

v. B. Chinna Narasimha and others2 and Hardeo

Rai v. Sakuntala Devi and others3. He further

argues that the consideration by the High

Court or the Trial Court is not from the

perspective of entitlement of an unmarried

daughter under Section 29A of an Amendment Act

but from the finality attached to the

Judgement in Appeal No.165/1984. Therefore,

alternatively, it is argued that the impugned

Judgment of the High Court is set aside and

the matter remitted to the Appellate Court for

consideration afresh.

10. Shri P.B. Suresh, learned Counsel,

contends that the principles enunciated in the

Judgments relied on by the appellant cannot, 1 (2020) 9 SCC 1 2 (2017) 7 SCC 342 3 (2008) 7 SCC 46

12 abstractly, be applied to the facts and

circumstances of the case. The Third

defendant, it is contended, claims exclusive

rights and title to plaint schedule through

agreement of sale dated 18.07.1974,

crystallised into an enforceable Decree in

Appeal No. 165 of 1984, and as confirmed by

this Court in SLP (C) No. 10689 of 1995. It is

argued that, by calling in question the Decree

in Appeal No. 165 of 1984 or partial partition

through Exhibit-A3, the declaratory relief,

much less the partition relief is available to

the plaintiff. It is contended that Section

29A of the State Amendment, firstly, is

unavailable nor attracted to the case on hand.

The learned Counsel does not join the issue of

whether members of the coparcenary can enter

into a partial partition or not but argues by

referring to a partial partition deed dated

13 24.02.1980(Exhibit A3). He contends that, on

25.03.1989, i.e., the date on which Section

29A of the Hindu Succession Act (State

Amendment) came into force, the plaint

schedule property ceased to be either

coparcenary or Hindu Undivided Family

Property. As a signatory to the partial

partition deed dated 24.02.1980, the plaintiff

accepted the plaint schedule as property

belonging to Defendants 1 and 2. Therefore,

the partial partition is understood as the

partial partition of the remainder of the

property in the schedule covered by the

Exhibit-A3 document. The description of the

property indicates that the subject matter of

the suit was treated as property belonging to

Defendants 1 and 2. The third defendant since

has purchased from the exclusive owners, i.e.,

Defendant Nos. 1 and 2, treating the plaint

14 schedule property as a coparcenary property is

unavailable, and the Courts below have rightly

rejected the claim.

11. The property since ceased to be a

coparcenary property on the date of

introduction of Amendment to Section 29A; the

claim for partition is rightly rejected by the

Courts below. He prays for dismissing the

Civil Appeal. The learned Counsel relied on

Suhrid Singh Alias Sardool Singh v. Randhir

Singh and others4 and Sunil Kumar and another

v. Ram Prakash and others5.

12. We have perused the record and taken note

of the rival contentions. The above narrative

set out in preceding cases takes us to a

concise question for consideration, viz.,

whether the plaint schedule has the colour of

coparcenary as of 25.03.1989 and is available 4 (2010) 12 SCC 112 5 (1988) 2 SCC 77

15 for partition. The review is more in the realm

of circumstances proved by the parties than

the interpretation or application of Section

29A of the State Amendment to the case on

hand.

13. The argument of learned Counsel for the

plaintiff lays substantial emphasis on the

statutory recognition of status as a

coparcener to an unmarried daughter by Section

29A of the Hindu Succession Act and that the

plaintiff is a non-executant and, therefore,

the plaintiff’s share in the coparcenary is

available for partition. Briefly stated, the

applicability of Section 29A is not the

deciding factor but the deciding factor in the

case on hand is whether the suit property is

available for partition. The crucial

circumstance is whether the plaint schedule

has the status or standing of a coparcenary

16 property and is available for partition. The

High Court, having examined each one of the

relevant circumstances, found that the

property is not available partition as of the

date of coming into force of Section 29A of

the State Amendment and dismissed the appeal.

We have perused the Judgment and concur with

the findings.

14. We are alive to the principle that there is

no prohibition to effect a partition otherwise

than through an instrument in writing by duly

complying with the requirement of law. In

other words, the division may also be effected

under a settlement or oral understanding. The

circumstances and manner of recognising

Defendants 1 and 2 as exclusive owners are not

disclosed by the plaintiff or Defendants 1 and

2.

17

15. Exhibit A3 is a partial partition deed

containing three schedules. Schedule-I covers

the entire property, i.e., the total extent

covered by premises bearing No. 68

corresponding to new No.24, G.N. Chetty Road,

T. Nagar, Madras, has five grounds and 1185

square feet. The partial partition allocated

the property in Schedule-A to Defendants 1 and

2 and Schedule B to the parties of the second

part, i.e., the plaintiff herein. The

plaintiff accepted the property given in the

‘B’ Schedule. In this aspect, the plaintiff

has admitted that the present suit schedule

property belongs to the first and second

defendants and has taken separate possession

of the ‘B’ Schedule in Exhibit-A3 partial

partition. Plaintiff does not take steps to

assail Exhibit-A3 in the manner known to law

but proceeds to assume contrary to a clear

18 understanding and claims partition. We are

conscious that the factum of division is

decided by the cumulative effect of all

attending circumstances proved by the parties.

Either the previous partition or separate

ownership of any property is accepted on the

evidence placed on record by the parties. In

the case on hand, the plaintiff is legally

obliged to discharge the burden that the

plaint schedule is not only a coparcenary but

continued to be so even as of 25.03.1989 and

that the plaintiff is entitled to enforce the

claim for partition. Let us examine whether

the plaintiff discharged the burden on the

above touchstone. The suit is filed both for

declaration and partition. What has been

explicitly declared by Section 29A, subject to

a daughter being unmarried, gets the status of

a coparcener. There is no difficulty in

19 expressing the plaintiff's position as a

coparcenary member. The fact that the

plaintiff has earned the legal standing of a

coparcener cannot, by itself, would be a

reason to accept the prayer for partition

unless the plaintiff discharges the burden

that the partial partition through Exhibit-A3

did not affect the coparcenary rights in

Schedule-I appended to Exhibit-A3. The

recitals in Exhibit A3 and subsequent deeds

demonstrate that the property shown as a

northern boundary to the ‘C’ Schedule is

treated as property belonging to the first and

second defendants. The pleadings or evidence

is absent to displace the presumption that

could be drawn on Defendants 1 and 2 getting

exclusive ownership of the suit schedule

property as a signatory to Exhibit-A3 whether

they could be allowed to lead evidence

20 contrary to the recitals in a registered deed.

The plaintiff failed to discharge the burden.

The findings of the facts recorded do not

warrant interference. Independent

consideration of the above circumstances

reinforces the conclusion the Courts below

arrived in rejecting the suit prayers.

16. In whichever way we appreciate, the

plaintiff still failed to demonstrate that the

plaint schedule continued to be a coparcenary

available for partition.

17. For the above consideration and reasons,

the Civil Appeal fails and is dismissed

accordingly—no order for costs.

................J. [BELA M. TRIVEDI]

................J. [S.V.N. BHATTI]

NEW DELHI;

21 AUGUST 16, 2023.

22