Nachayal v. Rathinammal5.Ramayal6.Ponayal alias Chinnammal7.Pappal8.Pachayal alias Kunjayal9.Ammasaiakkal10.Sundarayal11.Deivasigamani12.Parameswaran(

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 31.8.2007CORAM:THE HONOURABLE MR.JUSTICE C.NAGAPPANA.S.No.659 of 1995Nachayal .. Appellant-Vs-1.PongiannanS/o.Palani Gounder2.KuppayalW/o.Palani Gounder3.Chinnammal4.Rathinammal5.Ramayal6.Ponayal alias Chinnammal7.Pappal8.Pachayal alias Kunjayal9.Ammasaiakkal10.Sundarayal11.Deivasigamani12.Parameswaran(Respondents 3 to 12 exparte in the lower court.Hence given up)... RespondentsAppeal against the judgment and decree dated 23.11.1994 made inO.S.No.225 of 1990 on the file of Principal Subordinate Judge, Erode,Periyar District. For appellant : Mr.A.K.KumaraswamyFor respondents : No appearance for R1 and R2. (R3 to R12 given up).JUDGMENTThe Appeal is preferred against the judgment and decree dated23.11.1994 rendered in O.S.No.225 of 1990 on the file of PrincipalSubordinate Judge, Erode. The plaintiff in the suit is the appellantherein. https://hcservices.ecourts.gov.in/hcservices/

2. The plaintiff filed the suit seeking for a decree directing thedivision of the suit properties into 27 equal shares by metes and boundsand allot 10 such shares to the plaintiff and put her in separatepossession thereof. The case of the plaintiff is that her father Palani Gounderhad two wives, namely, Thangammal and Kuppayal, the second defendant inthe suit and the plaintiff and defendants 5 to 7 are the daughters offirst wife Thangammal while the defendants 8 to 12 are the daughters andsons of the predeceased daughter of Thangammal by name Mottaiakkal aliasKaruppathal and the first defendant is the son of Palani Gounder throughhis second wife Kuppayal and the defendants 3 and 4 are the daughters ofPalani Gounder through Kuppayal. According to the plaintiff, the entiresuit properties were the joint family properties of Palani Gounder, thefirst defendant and the plaintiff, who is an unmarried daughter of PalaniGounder and Palani Gounder died on 27.3.1975 and the entire suitproperties remain undivided by metes and bounds and the plaintiff, who isan unmarried daughter of late Palani Gounder, became a co-parcener andmember of the joint family as per the provisions of Hindu Succession(Tamil Nadu Amendment) Act 1989 and was entitled to 1/3 share in the suitproperties, similarly, her father Palani Gounder and the first defendantare entitled to 1/3 share each and after the death of Palani Gounder, his1/3 share would devolve upon the plaintiff, defendants 1 to 7 anddefendants 8 to 12 jointly in equal moities and the plaintiff would get10/27 shares, the first defendant would get 10/27 shares and defendants 2to 7 would get 1/27 share each and defendants 8 to 12 would jointly get1/27 share in the suit properties. It is further stated by the plaintiffthat the first defendant has filed another suit for declaration and otherreliefs in O.S.No.636 of 1989 on the basis of alleged Will executed bylate Palani Gounder on 16.6.1966. According to the plaintiff, that Willis not true, valid and genuine and even assuming it to be true, it wouldnot bind the plaintiff's 1/3 share and hence the suit.3. The first defendant filed an elaborate written statement statingthat he and his father late Palani Gounder were members of Hindu jointfamily and Palani Gounder and his four brothers divided their ancestraljoint family properties under registered partition deed dated 9.9.1921and Palani Gounder was allotted a share and he also purchased some landsfrom the income of ancestral properties and all the properties weretreated as joint family properties and Palani Gounder celebrated themarriage of his six daughters by giving customary seers and jewels and healso executed a Will on 16.6.1966. It is further stated by the firstdefendant that Palani Gounder died on 27.3.1975 and after his death,Thangammal, senior wife and mother of the plaintiff took possession of theproperties given to her under the Will and she was residing in one of thehouses and enjoying the income from the landed properties till she died on1.11.1989 and afterwards, the first defendant became entitled to theproperties absolutely. According to the first defendant, the rightclaimed by the plaintiff under the Tamil Nadu Amendment Act 1/1990 is https://hcservices.ecourts.gov.in/hcservices/ misconceived since there was no coparcenary on the date when the TamilNadu Amendment Act came into effect. The first defendant has furtherstated that on the death of Palani Gounder, the coparcenary consistingof himself and his only son came to an end as per Section 6 of the HinduSuccession Act and the partition took effect under Explanation toSection 6 and there was no joint family subsequently since by operation ofthe statute, a complete partition took effect on the death of PalaniGounder. It is further stated by the first defendant that the TamilNadu Amendment Act 1/1990 is prospective in nature and to claim thebenefit of the same, there should be a coparcenary consisting offather/Kartha, son and unmarried daughter and that is not the case hereinand hence the plaintiff is not entitled to the benefit of the Tamil NaduAmendment Act 1/1990. The first defendant has further stated that theplaintiff along with others has filed another suit in O.S.No.636 of 1989for declaration and injunction and afterwards, the present suit came tobe filed and hence it is barred.4. The Trial Court conducted the joint trial of the suits inO.S.Nos.636 of 1989, 202 of 1990 and 225 of 1990 and a common judgmentwas rendered, in which, the suit in O.S.No.225 of 1990 came to bedismissed without costs. The plaintiff in O.S.No.225 of 1990 haspreferred the present appeal. No appeal came to be preferred against thedecisions rendered in the other two suits. For the sake of convenience,in this Judgment, the parties are referred to as arrayed in the suit inO.S.No.225 of 1990. The respondents remain absent in this appeal.5. The points for determination in this appeal are: 1. Whether the plaintiff is entitled to the benefitconferred in Tamil Nadu Amendment Act 1/1990.2. Whether the plaintiff is entitled for a decree forpartition as prayed for.POINT NOS. 1 AND 2.6. The specific case of the plaintiff is that the suit propertiesremain undivided and the plaintiff, who is the unmarried daughter of latePalani Gounder, is a coparcener and as per the provisions of HinduSuccession (Tamil Nadu Amendment) Act 1/1990, she is entitled to 1/3 sharein the suit properties and her father Palani Gounder and firstdefendant are entitled to 1/3 share each. The said claim is contested bythe first defendant on the ground that the Tamil Nadu Amendment Act1/1990 is prospective and in order to claim the benefit of the Act, thereshould be a coparcenary consisting of father/Kartha, son and unmarrieddaughter and if the father/Kartha had died prior to 25.3.1989, theunmarried daughter cannot claim the status of coparcener and PalaniGounder died on 27.3.1975 and on his death, the coparcenary consisting ofhimself and his only son came to an end under Section 6 of the HinduSuccession Act and a partition took effect as per Explanation 1 to Section https://hcservices.ecourts.gov.in/hcservices/ 6 of the Act and therefore the plaintiff is not entitled to claim thebenefit of Tamil Nadu Act 1/1990.7. Mr.A.K.Kumaraswamy, the learned counsel for theappellant/plaintiff, brought to the notice of this Court three decisionsin this regard. The first decision is SUNDARAMBAL AND OTHERS v.DEIVANAYAGAM AND OTHERS (1991-1-L.W. 97). M.Srinivasan, J. [as hethen was] considered the scope of Section 29-A of the Hindu SuccessionAct as introduced by Tamil Nadu Amendment Act 1/1990 and held as follows: "15. ........ Under Sub-clause (1), the daughter of acoparcener shall become a coparcener in her own right by birth,thus enabling all daughters of a coparcener who were born evenprior to 25th March 1989 to become coparceners. In otherwords, if a male Hindu has a daughter born on any date prior to25th March 1989, she would also be a coparcener with him inthe joint family when the Amendment came into force. But thenecessary requisite is, the male Hindu should have been aliveon the date of the coming into force of the AmendmentAct. ......The position under sec.29-A will reduce to this. Alldaughters of a male coparcener will become coparceners entitledto a share with him, if the coparcener had been alive on25.3.1989. Even among such daughters if any daughter has beenmarried before 24.3.1989, she will not be entitled to claim ashare as a coparcener. If there had been a partition in thefamily before 25.3.1989, that partition will not be affectedby the provisions of the Amendment Act. In that event also,the daughter of a coparcener will not be entitled to claim ashare as coparcener from the date of her birth and reopen thepartition already effected."8. While considering the scope of the Amendment Act, the learnedJudge did not agree with the reasoning made in the decision of AndhraPradesh High Court in S.NARAYANA REDDY v. SAI REDDY (A.I.R. 1990 AndhraPradesh 263) and held that in a case where the preliminary decree hasbecome conclusive and the shares of the parties are crystalised there isno provision or method by which the partition can be reopened and a highershare can be granted to one of the sharers and reduce the shares of theother sharers.9. The Supreme Court considered the appeal filed against the abovedecision of the Andhra Pradesh High Court in S.SAI REDDY v. S.NARAYANAREDDY AND OTHERS ((1991) 3 Supreme Court Cases 647) and the Apex Courtaffirmed the decision of the High Court and laid down the law as follows: "7. ..... Thus if prior to the partition of familyproperty a daughter had been married, she was disentitled toany share in the property. Similarly, if the partition hadbeen effected before September 5, 1985 the date on which theamending Act came into force, the daughter even thoughunmarried was not given a share in the family property. The https://hcservices.ecourts.gov.in/hcservices/ crucial question, however, is as to when a partition can besaid to have been effected for the purposes of the amendedprovision. A partition of the joint Hindu family can beeffected by various modes, viz., by a family settlement, by aregistered instrument of partition, by oral arrangement by theparties, or by a decree of the court. When a suit forpartition is filed in a court, a preliminary decree is passeddetermining shares of the members of the family. The finaldecree follows, thereafter, allotting specific properties anddirecting the partition of the immovable properties by metesand bounds. Unless and until the final decree is passed andthe allottees of the shares are put in possession of therespective property, the partition is not complete. Thepreliminary decree which determines shares does not bring aboutthe final partition. For, pending the final decree the sharesthemselves are liable to be varied on account of theintervening events. In the instant case, there is no disputethat only a preliminary decree had been passed and before thefinal decree could be passed the amending Act came into forceas a result of which clause (ii) of Section 29-A of the Actbecame applicable. This intervening event which gave sharesto respondents 2 to 5 had the effect of varying shares ofthe parties like any supervening development. Since thelegislation is beneficial and placed on the statute book withthe avowed object of benefitting women which is a vulnerablesection of the society in all its stratas, it is necessary togive a liberal effect to it. ...... 8. Hence, in our opinion, the High Court has rightly heldthat since the final decree had not been passed and theproperty had not been divided by metes and bounds, clause (iv)to Section 29-A was not attracted in the present case and therespondent-daughters were entitled to their share in the familyproperty." 10. Later, a Division Bench of this Court consistingof Srinivasan and Thangamani, J J., in the decision inM.SHANMUGHA UDAYAR v. SIVANANDAM AND 8 OTHERS (1993 – 2 – L.W. 72),followed the above law laid down by the Supreme Court and held that theunmarried daughter, who was the tenth defendant in the suit, is entitledto a share equal to that of a son.11. The law is settled that if the partition had been effected beforethe Amendment Act came into force, the daughter even though unmarried,is not entitled for a share in the family property. It is seen that inthe cases decided by the Apex Court and by the Division Bench of thisCourt, the daughter of a coparcener became a coparcener in her own right,since the coparcener was alive on the date of coming into force of theAmendment Act and in those circumstances, when a partition was noteffected, it is held that unmarried daughter shall become coparcener inthe same manner as a son. In the present case, Palani Gounder died on https://hcservices.ecourts.gov.in/hcservices/

27.3.1975, well before the coming into force of the Tamil Nadu AmendmentAct 1/1990, namely, 25.3.1989 and hence the plaintiff, viz., his unmarrieddaughter, cannot claim to be a coparcener in the same manner as a son ason the date of coming into force of the Amendment Act. The finding ofthe Trial Court that the plaintiff is not entitled to the benefitconferred in Tamil Nadu Amendment Act 1/1990, is correct and proper.Hence, the plaintiff is not entitled for a decree for partition as prayedfor. The Points are answered against the appellant.12. There are no merits in the appeal and the same is dismissed.However, considering the fact that the respondents have not enteredappearance in the appeal, there shall be no order as to costs.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarVks.To1. The Principal Subordinate Judge,Erode, Periyar District.2. The Section Officer,V.R.Section, High Court,Madras.A.S.No.659 of 1995 LA(CO)RVL 13.09.2007