O.S.A.NO.413 OF 20001. Amudha Rani2. Vijayalakshmi3. Shanthi @ Ramaprabha v. K. Veeraraghavan @ K.V.Raghavan2. V. Karunamurthy3. v. Narayanan4. V. Damodaran5. V. Arumugam

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 12-10-2007CORAMTHE HONOURABLE MR. JUSTICE P.K. MISRAANDTHE HONOURABLE MR. JUSTICE K. MOHAN RAMO.S.A.NO.413 OF 2000andCross Objection No.108 of 2001O.S.A.NO.413 OF 20001. Amudha Rani2. Vijayalakshmi3. Shanthi @ Ramaprabha.. AppellantsVs.1. K. Veeraraghavan @ K.V.Raghavan2. V. Karunamurthy3. v. Narayanan4. V. Damodaran5. V. Arumugam.. RespondentsCross Objection No.108 of 20011. V. Karunamurthy2. v. Narayanan3. V. Damodaran4. V. Arumugam.. Cross ObjectorsVs.1. Amudha Rani2. Vijayalakshmi3. Shanthi @ Ramaprabha.. RespondentsAppeal and Cross Objection have been filed under Clause 15 of theLetters Patent and Order 36 Rule 2 of O.S. Rules read with Order 41Rule 22 CPC against the Judgment of the learned single Judge inC.S.No.363 of 1995 dated 5.6.2000. https://hcservices.ecourts.gov.in/hcservices/ For Appellantsin: Mr.B. KumarOSA and Respondents Senior Advocate for in Cross Objection Mr.R. LoganathanFor Respondents 2-5: Mr.A. Venkatesanin OSA and Cross ObjectorsRespondent -1 : DiedJ U D G M E N TP.K. MISRA, JThe present appeal is directed against the judgment dated5.6.2000 in C.S.No.363 of 1995.2. The plaintiffs are the appellants. 3. One Kandaswamy Naicker, who died in the year 1955, hadthree sons, namely, Murugesan, Venkatachalam and K. Veeraraghavan(Defendant No.1). One Meenakshi Ammal was the wife of Veeraraghavan.Three daughters of Meenakshi Ammal and Veeraraghavan are theplaintiffs and the four sons are the defendants 2 to 5 respectively.After the death of Kandaswamy Naicker there was a partition, whereinMurugesan separated himself and the other two brothers continuedjointly. On 17.7.1971, the first defendant executed a release deed(Ex.B-3) in favour of his wife Meenakshi Ammal as well as all thechildren, including the plaintiffs, releasing his share in the jointfamily properties. Subsequently, under Ex.B-2 dated 27.12.1971, therewas a partition between Venkatachalam and the family members ofVeeraraghavan. The property described in 'B' schedule of suchdocument was allotted to the family members of Veeraraghavan.Subsequently there was a partition under a registered deed ofpartition dated 23.4.1976, whereunder different properties asdescribed in Schedule 'A' to 'H' were allotted to different parties,namely, the plaintiffs, defendants 2 to 5 and Meenakshi Ammal. AsVeeraraghavan, the first defendant, had already released his interest,no property had been allotted to him. The property described in ItemNo.1 of Schedule 'A' of the plaint had been allotted to the share ofMeenakshi Ammal and the property described in item No.2 of Schedule'A' had not been specifically partitioned and, as per the recital,such property would be partitioned at the appropriate time accordingto the wish of Meenakshi Ammal. The properties which were inheritedby Meenakshi Ammal from her mother Sivagami Ammal have been describedin 'B' schedule of the plaint. Meenakshi Ammal died on 30.3.1982intestate leaving behind the plaintiffs and the defendants as herheirs. Subsequently, the defendants 2 to 5 purported to divide 'A' https://hcservices.ecourts.gov.in/hcservices/ schedule property as if the entire property belonged to them. Theplaintiffs claim that they are entitled to separate share in 'A' and'B' schedule properties. The second item in 'A' schedule consists ofa Kalyana Mandapam constructed out of income of the family propertyand the plaintiffs are also entitled to a share in the building aswell as in the income derived from the Kalayana Mandapam and they areentitled to past mesne profits. Accordingly, the suit for partitionwas filed claiming 3/8th share in the second item of Schedule 'A' andthe entire 'B' schedule property and claiming 3/7th share in item No.1of Schedule 'A'. They have also claimed past and future mesneprofits.4. A joint written statement was filed by the defendants 1to 5. While not disputing about the relationship, the defendantsclaim that the plaint 'A' schedule items 1 & 2 are joint familyproperties belonging to the defendants alone and the plaintiffs notbeing the coparceners, do not have any right in such properties. Thedefendants admitted that 'B' schedule property had been inherited byMeenakshi Ammal from her mother. However, it was stated that itemNo.2 of 'B' schedule had been sold and documents had been signed bythe plaintiffs as well as the defendants. The deed of release did notaffect the right of the first defendant to get his share in theadmitted joint family properties and at any rate it did not affect theright of other coparceners and such release deedis invalid in law and did not confer any right upon the plaintiffsand, in spite of such deed of release, the first defendant wasenjoying his share in the properties. It has been further indicatedin the written statement that the first defendant had only 1/5th sharein the joint family property and even assuming that the deed ofrelease is valid, the plaintiffs can have only 1/7th share each out of1/5th share of the first defendant. It has been also indicated thatin respect of Kalyana Mandapam the plaintiffs cannot claim any shareas such property was a joint family property built out of income fromthe joint family property. 5. A reply statement was filed by the plaintiffs reiteratingthe claim made in the plaint. 6. On the basis of the pleadings, the learned single Judgeframed the following issues :-"(1) Whether the plaintiffs are entitled to 3/7th sharein item No.1 of 'A' schedule property and 3/8th share in itemNo.2 of 'A schedule property ? (2) Is the release deed dated 17.7.1971 executed by thefirst defendant is valid and if so to what share theplaintiffs are entitled ?(3) Whether the partition deed dated 23.4.1976 wouldconvey any right on the mother to the properties allotted to https://hcservices.ecourts.gov.in/hcservices/ her in the said partition ?(4) Whether Kalyana Mandapam in item No.2 of 'A scheduleproperty is available for partition ?(5) Whether item No.2 in 'B' schedule property isavailable for partition ?(6) To what properties the plaintiffs are entitled ?(7) To what other reliefs the plaintiffs are entitled ?"7. Under issue No.5, the learned single Judge held that itemNo.2 in 'B' schedule property was not available for partition as thesaid property had already been sold away much prior to the suit. Thelearned single Judge, however, held that the plaintiffs are entitledto 3/8th share in item No.1 of 'B' Schedule. 8. Such finding is not in dispute. However, since the firstdefendant has died during pendency of th appeal, it is obvious thatthe first defendant's 1/8th share in item No.1 of 'B' scheduleproperty is to be apportioned among the plaintiffs and the remainingdefendants 2 to 5. 9. The main discussion relates to issue No.2. Whilediscussing the said issue, the learned single Judge held that afterpartition under Ex.B-1, Venkatachalam and Veeraraghavan continued tobe the members of the joint family along with their children and theirenjoyment was common. The first defendant executed Ex.B-3 releasedeed dated 17.7.1971 relinquishing all his rights in the joint familyproperties in respect of undivided 1/5th share in favour of othermembers of the joint family, including the wife and daughters. Thelearned single Judge further held: "... So the defendants are perfectly justified andcorrect in stating that under Ex.B.3 release deed thePlaintiffs have become entitled to only 3/7th of 1/5thshare. ... the plaintiffs 1 to 3 by virtue of thisrelease can only claim right, title and possession of 1/35share each i.e., 1/7th of 1/5th". Learned single Judge has negatived the contention of the defendantsthat Ex.B-3 release deed was only a nominal document as on the basisof such deed of release subsequent partition was effected betweenVenkatachalam on the one hand and the family members of Veeraraghavanon the other hand, wherein Veeraraghavan was excluded and propertieswere allotted to Meenakshi Ammal and other children. Subsequently asper the deed of partition Ex.A-2, the properties were partitionedamong the plaintiffs, the defendants 2 to 5 and Meenakshi Ammal and noproperty had been allotted to the first defendant. It has beenfurther found that after the deed of release, three daughters andMeenakshi Ammal were entitled to joint family properties and on thatbasis in the partition separate properties were allotted to the https://hcservices.ecourts.gov.in/hcservices/ daughters and mother as well as four sons as per schedule 'A' to 'H'of such partition deed dated 23.4.1976. 'A' schedule of the partitiondeed Ex.A-2 is item No.2 of the present plaint 'A' schedule. Suchproperty had been allotted to Meenakshi Ammal. Item No.1 of thepresent 'A' schedule is the property which had been left joint andwhich was under the enjoyment of Meenakshi Ammal. A Kalyana Mandapamwas erected on the property described in item No.2 of plaint 'A'schedule. Such construction commenced during the lifetime ofMeenakshi Ammal by utilising the income from the family property whichwas under her possession and subsequently it was completed in 1983,after the death of Meenakshi Ammal, and for completing the buildingthe sons did not contribute individually from their separate share,but money was spent from the income of item No.1 of 'A' schedule. Onthe basis of the aforesaid conclusion, the learned single Judge heldthat the plaintiffs as well as the defendants are entitled to equalshare in Kalyana Mandapam, namely, item No.2 of plaint 'A' schedule.So far as item No.1 of 'A' schedule is concerned, the learned singleJudge held that originally such property was a joint family property,wherein the first defendant has merely released his share and,therefore, the plaintiffs would be entitled to 1/7th share out of1/5th share of the first defendant.10. The present appeal is confined to the extent of share initem No.1 of 'A' schedule property. The appellants also claim pastmesne profits. 11. A cross objection has been filed on behalf of thedefendants claiming that the plaintiffs are not entitled to any sharewhatsoever in 'A' schedule properties.12. The learned Senior Counsel appearing for the appellantshas submitted that as per the deed of release, all the family membersincluding the plaintiffs became joint owners in respect of item No.1of 'A' schedule property and as such they are entitled to get equalshare. It is further contended that in the deed of partition,properties had been allotted to all and only item No.1 of 'A' schedulehad been left out and since the extent of share has not beenspecifically delineated, the trial court should have allotted equalshare to all the parties. In the alternative it is submitted thateven assuming that the plaintiffs are entitled to get share only inrespect of 1/5th interest of the original first defendant, so far asthe third plaintiff is concerned, she being unmarried in 1989, whenthe Hindu Succession Act (Tamil Nadu Amendment) Act, 1989 came intoforce, such unmarried daughter should be treated as a coparcener alongwith other sons, namely, the defendants 2 to 5, and, therefore, she isentitled to a share equal to any other son, namely, the defendants 2to 5. So far as the past mesne profits is concerned, the learnedSenior Counsel has submitted that since the plaintiffs are entitled to https://hcservices.ecourts.gov.in/hcservices/ their share in item No.2 of schedule 'A', Kalyana Mandapam as well asother properties, the defendants should be made liable to pay themesne profits.13. It is no doubt true that the deed of release is found tobe genuine and acted upon. However, such deed of release or deed ofrelinquishment was operative in respect of the interest of the firstdefendant in the joint family properties. Obviously the firstdefendant had no power to execute any deed of release orrelinquishment in respect of the interest of the other coparceners,namely, the defendants 2 to 5. Therefore, it has been rightly held bythe trial court that by virtue of such deed of release, 1/5th share ofthe first defendant became vested with other members of the family,including the plaintiffs. On the basis of such deed of release, theproperties had been divided among all the members of the joint familyexcluding the first defendant. Such partition is not sought to bereopened by any of the parties. Item No.1 of schedule 'A' is onejoint family property which had not been partitioned in the deed ofpartition. The defendants 2 to 5 had 4/5th interest in such propertyand the balance 1/5th interest in such property representing theinterest of the first defendant got settled with all the members,i.e., Meenakshi Ammal as well as four sons and three daughters. Sinceadmittedly Meenakshi Ammal died subsequently in 1982, her interest insuch property devolved upon all the heirs, namely, the plaintiffs andthe defendants in equal proportion. Since admittedly the father,first defendant, had died in the meantime, the ultimate direction ofthe trial court that the plaintiffs had 3/35th share in item No.1 ofschedule 'A' requires no modification.14. However, so far as the third plaintiff is concerned, thecontention of the learned Senior Counsel for the appellants that sheshould be taken to be a coparcener and, therefore, entitled to a shareequal to that of a son has to be accepted. There is no dispute thatby the time the amendment came into force, the third plaintiff wasunmarried. By virtue of the amendment, she must be taken to be acoparcener.15. Section 29-A of the Hindu Succession Act, a part ofChapter II-A, was inserted by Tamil Nadu Amendment Act 1 of 1990 witheffect from 25.3.1989. As per Section 29-A(i), the daughter of acoparcener shall become a coparcener in her own right in the samemanner as a son and have the same rights in the coparcenary propertyas she had been a son and shall be subject to the same liabilities anddisabilities in respect thereto as the son. As per Section 29-A (ii),the daughter shall be entitled to the same share as allottable to ason. However, as per Section 29-A(iv), nothing in Chapter II-A shallapply to a daughter married before the date of the commencement of theHindu Succession (Tamil Nadu Amendment) Act, 1989. https://hcservices.ecourts.gov.in/hcservices/

16. The Tamil Nadu Amendment Act came into force with effectfrom 25.3.1989. The plaintiffs 1 and 2 were admittedly married beforesuch date but the third plaintiff was unmarried on the said date. Themoot question is therefore whether the third plaintiff is entitled tothe benefit as envisaged under Section 29-A. It is to be noted thatin the plaint itself no such claim had been made regarding the allegedright of the third plaintiff under Section 29-A. However, a questionof law raised in appeal on the basis of materials on record, if thereis no factual aspect depending upon any new evidence to be adduced, isrequired to be gone into. 17. Section 29-A(v) provides that nothing in clause (ii)shall apply to a partition which had been effected before the date ofcommencement of the Hindu Succession (Tamil Nadu Amendment) Act, 1989.It is now well settled that the expression “partition” in the contextof the above provisions means a completed partition by metes andbounds and not mere severance of joint status.18. In the above view of the matter, the contention of thelearned Senior Counsel appearing for the plaintiffs / appellants isrequired to be accepted so far as Plaintiff No.3 is concerned inasmuchas she became a coparcener along with her father and brothers andcontinued to be so till the death of her father. On the death ofDefendant No.1, the father of the plaintiffs 1 to 3 and defendants 2to 5, his 1/5th interest in item No.1 of plaint 'A' schedule propertywould devolve in accordance with Section 6 of the Hindu SuccessionAct. It must be taken that Defendant No.1 was a coparcener in respectof such 1/5th interest along with his four sons and youngest daughter.Such 1/6th interest is to be inherited by three daughters and four sonsand thus it is apparent that Plaintiff Nos.1 and 2 has 1/42 share eachin such property, whereas four sons and the youngest daughter, who hadbecome major by virtue of the amendment, each has 4/21 share in suchproperty. The judgment and decree of the trial court relating to theshare of the plaintiffs and the defendants 2 to 5 in Item No.1 of theplaint 'A' schedule property is thus liable to be modified and it ishereby declared that Plaintiffs 1 and 2 each has got 1/42 share andPlaintiff No.3 has got 4/21 share and similarly the Defendants 2 to 5each has got 4/21 share. 19. The contesting respondents in their cross objection haveraised the contention that the daughters, who had no right in thecoparcenary property, cannot claim any share on the basis of the deedof release/relinquishment executed by the father – Defendant No.1.According to the learned Counsel appearing for the respondents a deedof relinquishment or a deed of release by a coparcener can be validonly if such relinquishment is in favour of other coparceners as nomember of the coparcenary can otherwise gift his interest in thecoparcenary. Even though a coparcener cannot gift his property to astranger, gift by a coparcener to a small extent in favour of the https://hcservices.ecourts.gov.in/hcservices/ daughters or other members of the joint family has been recognised.Moreover, whatever might have been the legal impact of the deed ofrelease/relinquishment in favour of all the members of the jointfamily, including the daughters, such relinquishment has been acceptedby all the parties concerned including the four sons in the subsequentdeed of partition, admittedly executed and acted upon in the year1976. Therefore, it is too late in the day for the sons to contendthat the daughters could not claim any right by virtue of the deed ofrelinquishment. Therefore, the main contention raised in the crossobjection to the effect that no share should have been allotted to thedaughters in respect of the property released/relinquished by thefather cannot be accepted. 20. In course of hearing, a contention had been raised bythe learned Senior Counsel for the appellants that since the daughtersare to get the property by virtue of the deed ofrelinquishment/release and it is not indicated therein that they areto get right in the interest of the father, the learned single Judgeshould have granted them share in equal proportion in respect of theentire property and should not have confined it to 1/5th interest ofthe father.21. In our considered opinion, this submission cannot beaccepted. At the time when the father executed he deed ofrelinquishment/release, he could have dealt with only his interest inthe coparcenary and obviously he could not have released the interestof other coparcners, namely, the four sons. Therefore, the learnedsingle Judge was correct in confining the right of the daughters toclaim partition in respect of 1/5th interest of the father in theproperty relinquished/released by the father.22. The next question relates to mesne profits. In normalcourse, the claim for mesne profits for a period of three years priorto filing of the suit would have been accepted. The respondents,however, have raised a question that since the first defendant was inpossession of the property, mesne profits can be claimed only from thefirst defendant during his life time. 23. It is the admitted case of the parties that theDefendant No.1 had executed the deed of relinquishment. However, inthe evidence of of D.W.1, the fourth defendant, there is no whisperthat Defendant No.1 remained in possession. Similarly, no suggestionhas been made to P.W.1., the Plaintiff No.1, who has given evidencethat her brothers were in possession and the plaintiffs were not inpossession, that possession was actually with Defendant No.1.Therefore, there is no reason asto why the mesne profits should not be paid to the plaintiffs for theperiod three years prior to the suit, during pendency of the suit andthereafter. However, in the absence of any evidence relating to https://hcservices.ecourts.gov.in/hcservices/ income and expenditure of the properties, the question ofascertainment of mesne profits should be left to be done during thefinal decree proceedings.24. For the aforesaid reasons, the appeal is allowed in partand the judgment and decree of the learned single Judge is modified.In modification of the judgment and decree of the trial court it isdeclared that Plaintiff Nos.1 and 2 each is entitled to 1/42 share inItem No.1 of Plaint 'A' schedule property and Plaintiff No.3 isentitled to 4/21 share in such property and Defendants 2 to 5 areentitled to each 4/21 share in such property. The plaintiffs are alsoentitled to mesne profits so far as the Kalyana Mandapam is concerned.The cross objection is rejected. There shall be no order as to costs.Sd/Asst.Registrar/true copy/Sub Asst.RegistrardpkToThe Sub Assistant Registrar,Original Side, High Court, Madras.+1cc to Mr.A.Venkatesan, Advocate Sr 63114+1cc to Mr.R.Loganathan, Advocate Sr 63082VC (CO)km/31.10. OSA.NO.413/2000