Judgment:
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated:
31. 7.2013 Coram The Honourable Mr.Justice G.RAJASURIA S.A.No.799 of 2004 1.Ramu Naicker(Deceased) 2.Subramani 3.Rajagopal(Deceased) 4.Ramadoss 5.R.Balu 5th appellant recorded as LR of the deceased 1st appellant 6.Panchali 7.Punniyakotti(died) 8.Govindan 9.Padma Appellants 6 to 9 are brought on record as Lrs of the deceased 1st appellant vide order of Court dated 21.10.2011 made in C.M.P.Nos.885 to 888/2011 in S.A.No.799 of 2004 10.Janaki 11.Mariammal 12.Ponniammal Appellants 10 to 12 brought on record as Lrs of the deceased 3rd appellant vide order of Court dfated 21.10.2011 made in C.M.P.Nos.885 to 888/2011 in S.A.No.799 of 2004 13.Saraswathy 14.Suresh 15.Meena 16.Geetha .. Appellants Appellants 13 to 16 brought on record as Lrs of the deceased 7th appellant vide order of Court dated 2.2.2012 made in C.M.P.No.16/2012 in S.A.No.799 of 2004 Vs. 1.Chinnakannu Naicker 2.Kannammal 3.Thayarammal 4.V.Mohan .. Respondents This second appeal is directed against the judgment and decree dated 5.11.2002 in A.S.No.37 of 2002 and Cross objection in A.S.No.37 of 2002 passed by the Principal District Judge, Chengalpattu, modifying the judgment and decree dated 31.7.2001 passed by the Subordinate Court, Madurantakam, in O.S.No.136 of 1998. For Appellants : Mr.S.V.Jayaraman,Sr.counsel for Mr.K.Govi Ganesan For Respondents : Mr.M.S.Subramanian for R1 R2 died
JUDGMENTThis Second appeal is focussed by the defendants animadverting upon the judgment and decree dated 5.11.2002 in A.S.No.37 of 2002 and Cross objection in A.S.No.37 of 2002, in modifying the judgement and decree dated 31.7.2001 passed by the Subordinate Court, Madurantakam, in O.S.No.136 of 1998, which was one for partition.
2. The parties are referred to hereunder 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: (i)The first respondent herein, as plaintiff filed the suit seeking the following reliefs: ".(a)to direct the suit properties to be divided by metes and bounds and with respect to good and bad soil and for allotment of 35/96 share therein to the plaintiff by converting point possession into separate one, if need be by amongst and a Commissioner to effect such division and allotment of (b)to direct the first defendant to render and thus proper account in respect of the income from the properties his possession from the date of plaint till delivery of possession to the plaintiff separately after division and allotment of his share in the suit properties. (c)to direct the first defendant to pay the plaintiff the costs of this suit.". (extracted as such) as against the original six defendants citing as many as 47 items of properties under the two schedules namely 'A' and 'B'. (ii)D1, D4 to D6 filed the written statement resisting the suit. (iii)Subsequently the plaint was amended and two defendants were added, namely, D7 and D8. (iv)D2, D3 and D7 remained ex-parte. (v)D8-son of D7 filed the written statement inconcinnity with the written statement of D1. (vi)Whereupon issues were set down for trial, during which, the plaintiff examined himself as P.W.1 along with P.W.2 and marked Exs.A1 to A3. On the defendants' side, as many as twelve witnesses were examined as D.W.1 to D.W.12 and Exs.B1 to B41 were marked. (vii)Ultimately the trial Court partly decreed the suit allotting half share in favour of the plaintiff in respect of the items of suit properties in the 'A' schedule of the plaint and denied partition in favour of the plaintiff in respect of the 'B' scheduled properties. In respect of D2, D3, D4 and D6, no share was allotted. 4.Challenging and impugning the judgment and decree of the trial Court, the plaintiff preferred the appeal; whereas, the defendants preferred the cross-appeal. 5.The first appellate Court, after hearing both sides, decreed the suit as under: ".1.that the judgment and decree dt.31.7.2011 in O.S.No.136/98 on the file of Sub Court, Madurantakam, be and the same are hereby modified. 2.that the suit properties in item No.1 to 47 be divided into 96 equal shares and 35 such shares be allotted to the plaintiff; 3.that the suit for accounting by the 1st defendant be and the same is hereby dismissed. 4.that the cross objections be and the same is hereby dismissed. 5.that each parties do bear there own costs in the appeal.". 6.Being aggrieved by and dissatisfied with the judgment and decree of the first appellate Court, D1, D4 to D6 and D8 preferred this second appeal. 7.During the pendency of the second appeal, Ramu Naicker-D1 died and his L.Rs, namely, the appellants 6 to 9 were added; similarly D5 also died and his L.Rs, namely, the appellants 10 to 12 were added. Subsequently, even the appellant No.7 died and his L.Rs, namely, the appellants 13 to 16 were added. 8.Kannammal-the second defendant, died, however, her L.Rs were not added because she remained ex-parte through out, and hence, non-impleadment of her L.Rs would not be material. Wherefore the endorsement in the docket made on 23.8.2011, shall stand modified, because such an endorsement emerged on the assumption that Kannammal was a contesting party, but in fact, she was not a contesting party at all, through out. 9.In the grounds of appeal, the appellants/defendants suggested various substantial questions of laws. Based on the same, my learned predecessor formulated the following substantial questions of laws: ".(i)Has not the learned appellate judge committed an error in placing the burden on the appellant to establish that the properties were purchased not out of joint family income?. (ii)Whether in law, the 1st respondent can maintain a suit for partition in respect of the property standing in the name of 5th appellant?. (iii)Whether in law, the plaintiff can maintain a suit for partition in respect of the properties standing in the name of appellant when the 1st respondent has not let in evidence that the alleged joint family property is having sufficient surplus fund?. (extracted as such) 10.After hearing both sides, I thought fit to formulate the following additional substantial questions of law to the knowledge of both sides. (a)Whether the first appellate Court was justified in not taking into consideration the fact as to whether the income derived out of the respective joint family properties, admittedly under the convenient enjoyment of the co-sharers concerned, was accountable or not to the joint family as such?. and consequently whether the 'B' scheduled properties, which were acquired in the name of D1 should be treated as joint family properties or not, in the wake of the two judgements of the Division Bench of this Court reported in Kumaraswami Gounder and others v. Subba Gounder (died) and others (1977)90 L.W.583) and Nagayasami Naidu v. Kochadai Naidu (1970-1-M.L.J.105)?. (b)Whether the Hindu Succession (Amendment) Act, 2005 recognising the female members as coparceners in the joint family properties is having any impact in the factual matrix of this case?. 11.Heard both on the above substantial questions of law. 12.The learned Senior counsel for the appellants/defendants would pyramid his arguments, which could succinctly and precisely be set out thus: (i)The first appellate Court was not justified in giving a finding that the 'B' Scheduled properties are the joint family properties when actually there was division in status as admitted by the plaintiff and that there was no reunion. (ii)The trial Court correctly considered the evidence on record and held that D1 and his sons had separate income and from out of that, the 'B' scheduled properties were purchased in the name of D1 and that properties cannot be put into the common hotchpot for division. (iii)The plaintiff cannot take any prevaricative stand. In the earlier suit O.S.No.99 of 1990, he took a stand to the effect that there was partition of the joint family properties found described in the 'A' schedule of the plaint even as early as in the year 1971, but now he takes quite an antithetical one. (iv)In the year 1973 an item of property in the 'B' schedule was purchased by D1, so to say, during the life time of Thulukkanam Naicker-the father of the plaintiff and D1. (v)After the death of Thulukkanam Naicker the remaining properties found described in the 'B' Schedule of properties were purchased by D1 from out of his own income and the trial Court was justified to that much extent in giving a finding that the 'B' scheduled properties are not the joint family properties. (vi)The first appellate Court, without properly appreciating the evidence on record simply held as though the 'B' Scheduled properties were purchased from out of the joint family income. As such, the findings of the first appellate Court relating to the 'B' Scheduled properties are erroneous. 13.Per contra, in a bid to torpedo and pulverise the arguments as put forth and set forth on the side of the appellants/defendants, the learned counsel for the respondents/plaintiffs would advance his arguments, the warp and woof of the same would run thus: (i)The trial Court was not justified in holding that the 'B' scheduled properties, were the self-acquired properties of D1; because there was no shard or shred, molecular or jot extent of evidence to the effect that D1 was having any separate income other than the agricultural income derived by him from out of a part of the 'A' scheduled properties, which are admittedly the joint family properties. (ii)There is nothing to display and indicate that D1's sons had any business as alleged by D1. The mere ipse dixit of D1 cannot be taken as evidence in a case of this nature. (iii)The first appellate Court correctly and appropriately reversed the findings of the trial Court on that aspect and decided the lis comprehensively on the main ground that the 'B' Scheduled properties were purchased from out of the income derived from the part of the 'A' scheduled properties which are admittedly joint family properties and that even though the burden got shifted on D1 to prove that those properties are self-acquired properties, he has not proved the same. As such, no interference with the findings of the appellate Court is warranted. 14.In the course of the arguments, this Court thought fit to raise queries based on which the additional substantial questions of law were framed as above. 15.Whereupon both sides addressed those additional substantial questions of law and advanced their arguments. 16.The learned counsel for the respondents/plaintiffs would further argue as under: (i)The decision of the Honourable Apex Court reported in AIR1969SUPREME COURT1076 MUDIGOWDA GOWDAPPA SANKH AND OTHERS V. RAMCHANDRA REVGOWDA SANKH (DEAD) BY HIS LEGAL REPRESENTATIVES AND ANOTHER is clear on the point that once there is a finding on fact that the property which stands in the name of a coparcener, was acquired by that coparcener from out of the income derived from the income of the joint family nucleus, then that should be treated as the joint family property. (ii)In this case, the first appellate Court keeping in mind the aforesaid proposition of law gave such a finding and wherefore, the properties described in the 'B' schedule of the plaint should be treated as the joint family properties. (iii)The defendants have not raised any plea in the written statement or in the course of trial or even before the first appellate Court that the income derived from the joint family properties which were under their enjoyment for convenience sake, happened to be the income which was not subjected to be accounted to the joint family and in such a case there was no necessity also to go into that question. (iv)The Honourable Apex Court's decision in Mudigowda Gowdappa Sankh's case is clear on that point and further probe may not be necessary. (v)Since the daughters of Duraikannau Naicker got married long prior to 25.3.1989, so to say, anterior to the date of commencement of the Hindu Succession (Tamil Nadu Amendment) Act 1989 (Tamil Nadu Act 1 of 1990 w.e.f. 25.03.1989), that Succession opened even in the year 1976, so to say, on the date of death of Thulukkanam Naicker, relating to the properties and that the Central Amendment Act, to wit, Hindu Succession (Amendment) Act 2005 (39 of 2005) came into vogue only with effect from 9.9.2005, the question of applying the said Central Act does not arise. 17.Whereas, the learned Senior counsel for the appellants/defendants would further submit that in view of the earlier admission of the plaintiff that there had been separate enjoyment of the properties, under an alleged partition, there was no question of accounting the income arising out of such properties to the joint family, would arise. Hence, even for argument's sake, it is taken that such properties were purchased from out of the income derived from those joint family properties it would not be treated as joint family properties. 18.The relationship among the parties is an admitted one. The couple Thulukkanam Naicker and Baggiammal gave birth to as many as three sons and five daughters, namely, (1)Chinnammal, (2)Alamelu, (3)Ramu(D1), (4)Selvaraj, (5)Kannammal(D2), (6)Dhanammal, (7)Chinnakannu(plaintiff) and (8)Thayarammal(D3). Thulukkanam Naicker died in the year 1976 and Baggiammal pre-deceased him. 19.Out of said eight children, the daughter-Chinnammal died issueless; the daughter Alamelu died leaving behind her L.Rs D4-Subramani, D5-Rajagopal and D6-Ramadoss. D5-Rajagopal died leaving behind three persons as his L.Rs, namely, (i)Janaki(A10), (ii)Marri Ammal (A11) and (iii)Ponni Ammal(A12). 20.Ramu-the son of Thulukkanam Naicker was the original D1, who died pendente lite, leaving behind him his widow-Paanchali(A6) and his children the appellant Nos.5-Balu(D8), 8-Govindan, 9-Padmavathi and Punyakoti (A7). A7-Punyakoti also died, leaving behind his widow A13-Sarasathi and his children appellant Nos.14-Suresh, 15-Meena and 16-Geetha. 21.Selvaraj-the one other son of Thulukkanam Naicker died on 23.5.1990 in unmarried state. Kannammal(D2)-the daughterh of Thulukkanam Naicker died on 27.10.2002. Dhanammal died issueless. 22.Admittedly the 'A' scheduled properties are the joint family properties of Thulukkanam Naicker and his sons and they happened to be the coparceners. 23.On the one hand, the plaintiff would come forward with the case to the effect that during the year 1971 itself there was partition among the co-sharers and with that plea alone the earlier suit O.S.No.99 of 1990 was filed by him seeking the relief of declaration and injunction in respect of certain items of properties. But that was dismissed with the finding that there was no actual partition among the co-sharers. Whereupon the present suit was filed by the same Chinnakannu Naicker seeking the aforesaid reliefs. 24.Impugning and challenging the averments in the plaint, D1 and the other contesting defendants, contended to the effect that there was no partition as pleaded earlier by Chinnakannu Naicker, but there had been convenient separate enjoyment of various items of properties by the co-sharers respectively and the 'B' Scheduled properties were purchased by D1 from out of his own source of income and also with the help of his sons' income, which they allegedly earned by doing textile business and other businesses. 25.It is therefore just and necessary to analyse and consider deeply the judgments of both the Courts below, taking into consideration the Honourable Apex Court's decision in AIR1969SUPREME COURT1076 MUDIGOWDA GOWDAPPA SANKH AND OTHERS V. RAMCHANDRA REVGOWDA SANKH (DEAD) BY HIS LEGAL REPRESENTATIVES AND ANOTHER, certain excerpts from it would run thus: ".6.We pass on to consider the next question arising in this appeal, viz., whether the High Court was right in holding that the 12 pieces of lands were joint family properties and were not the self-acquired of Goudappa. The case of the appellants was that these lands were self-acquired of Goudappa, but the respondents contended that they were joint family properties. The law on this aspect of the case is well settled. Of course there is no presumption that a Hindu family merely because it is joint possesses any joint property. The burden of proving that any particular propertyy is joint family property, is therefore, in the first instance upon the person who claims it as coparcenery property. But if the possession of a nucleus of the joint family property is either admitted or proved, any acquisition made by a member of the joint family is presume to be joint family property. This is however subject to the limitation that the joint family property must be such as with its aid the property in question could have been acquired. It is only after the possession of an adequate nucleus is shown, that the onus shifts on to the person who claims the property as self-acquisition to affirmatively make out that the property was acquired without any aid from the family estate. In Appalaswami v. Suryanarayanamurti, ILR (1948) Mad 440 = (AIR1947PC189 Sir John Beaumount observed as follows: ".The Hindu law upon this aspect of the case is well settled. Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively by that the property was acquired without the aid of the joint family property.". 26.The learned counsel for the respondents/plaintiffs, by placing reliance on the above excerpt would submit that the Honourable Apex Court laid down the law in unambiguous terms that if it is shown that any property has been purchased from out of the income derived from the joint family nucleus, it should be treated only as the joint family property and nothing more to be probed into. 27.The learned counsel for the respondents/plaintiffs would also submit that even as per the decisions of the Division Bench of this Court reported in (i)(1977)90 L.W.583-Kumaraswami Gounder and others v. Subba Gounder (died) and others and (ii)Nagayasami Naidu v. Kochadai Naidu (1970-1-M.L.J.105), the term ".allotment". is contemplated but not mere enjoyment of the joint family properties by the co-sharers respectively for convenient sake. Certain excerpts from the said judgement would run thus: ".4.. . . . . . Mullah's Hindu Law, 14th Edn. Page 293 dealing with rights of coparceners states- ".The whole income of the joint family property must be brought, according to the theory of an undivided family, to the common chest or purse, and there dealt with according to the modes of enjoyment by the members of an undivided family.". But the learned author noted the strides and consequences made to this well-established principle by citing judicial precedents. In Ramayya v. Kolanda A.I.R.1939 Mad, 911 the ratio laid down in Bengal Insurance and Real Property Co.Ltd. v. Velayammal AIR, 1937 Mad 571 was accepted. These authorities always rested on the well-known principle that if an allotment of property to any member was made by the manager of the joint family, then such allotment should be presumed to have been made by him not with the intention of making the allotted member accountable for the income of the property allotted. The learned Judges said- ".The idea, undoubtedly when an arrangement of this kind is made, is that while the corpus of property should continue to remain joint the income should exclusively belong to and be at the disposal of the member concerned.". But, in the case before us, the allotment was not made by the manager or the head of the family, Kandaswami Gounder. The evidence discloses that what was taken over by the 1st plaintiff during the lifetime of his father was not in pursuance of an allotment of land, but pursuant to an arrangement for purposes of convenient and sole enjoyment. Until Subba Gounder died, the plaintiff did not have anything to do with Ramapatnam lands. It was only after the death of Subba Gounder an allotment, if at all was thought of by the family. Prior to it, there was no such domestic, internal adjustment equable to an allotment of properties which was done by the manager in the two reported decisions cited above. We are, therefore, constrained to make a distinction between the two well-known situations which may normally arise. In a case where the members of a family decided for purposes of convenience to take charge of certain properties of the family and administer them, it does not axiomatically follow that the person who has been charged with the responsibilities of possessing such properties is not to account for the income which the properties of which he has taken charge would yield. Bu the possession is different if at a family council the parties exercise their minds and carge out certain properties of the family for purposes of allotment to each of the branches and allot them to such of those sharers who are entitled to it in lieu of their maintenance and the maintenance of their branch. If the evidence in a case establishes that there was such an allotment with the avowed purpose as above, then the ratio in the above two decisions would apply and the income derived by the allottees from the possessed properties would be their own and they would not be in any sense accountable for such income to the other members of the family. That this appears to be the only way to reconcile the situations is clear from the observations of the Division Bench of our court in Nagayasami Naidu v. Kochadai Naidu (1970-1-M.L.J.105). The learned Judges said- ".The very idea of allotment for convenience enjoyment, though reserving a right to effect a final partition by metes and bounds, carries with it the necessary implication that the two branches were entitled to deal with the income accruing from the properties allotted to them in any manner they like and either branch will have no claim as against the other in respect of properties purchased out of such income. The learned Judges laid an accent on the word 'allotment'. We are also of the view that by a mere arrangement, domestic as it thought to be whereby a certain unit of a joint family or an individual takes charge of certain carved out properties he cannot plead that such properties were allotted to him in the realistic sense of the word so as to avoid his responsibility to account for the income from such properties which he derived by reason of his enjoyment. But, if it is a case of an allotment of such properties by reason of a decision which is expressive and positive amongst the members of the family which gives a reasonable impression that such allotment was always intended to give to the allottee an absolute right over the income of the allotted properties, then if follows that if any other properties are purchased from and out of such income, it would be the properties of the allottee and his branch.". 28.As per that judgment, if there is anything to show that there was allotment of joint family properties without partition among the co-sharers, without the liability to account for the income derived from out of such allotted properties and if any new property purchased from out of such income, then only such property would be out of the purview of the common hotchpot/Potpourri. 29.Here the 'B' Scheduled properties were purchased as per the findings of the first appellate Court from out of the income derived from the joint family nucleus and hence it should be treated as the joint family properties. 30.I would like to observe that in the Honourable Apex Court's judgment in MUDIGOWDA GOWDAPPA SANKH's case, the concept as found embedded in the judgment of the Division Bench of this Court in Kumaraswami Gounder was not involved and the factual matrix in that case before the Honourable Apex Court was entirely different from this case. There is nothing to show up or point up that the judgment of the Division Bench of this Court was over ruled by any other larger Bench of this Court or by the Honourable Apex Court. Hence, in my considered opinion the concept as found embedded in the judgment of Division Bench of this Court in Kumaraswami Gounder's case, even today is worthy of being applied and considered by the Courts, taking into consideration the evidence and the factual matrix. 31.But in this case, even though such a concept as found enshrined in the said decision of this Court was not raised, yet the factual matrix would demonstrate and display that such analysis is absolutely necessary. 32.Here the learned counsel for the respondents/plaintiff would stress upon the fact that it is not the case of the defendants that there was allotment of the joint family properties without partition among the co-sharers, without the liability to account for the income of the joint family, whereas it is the case of the defendants that the three sons of Thulukkanam Naicker were for convenience's sake, in possession and enjoyment of various items of the joint family properties respectively and nothing more. 33.At this juncture, it is just and necessary to refer to the earlier litigation, which emerged among the parties. O.S.No.99/90 was filed by the same plaintiff herein seeking the following reliefs: ".a.To declare that the plaintiff is absolutely and exclusively entitled to the properties mentioned in the schedules 'A' and 'C' hereunder. b.consequently to grant an order of permanent injunction restraining the defendant, his men, heirs, legal representatives, agents and servants from in any way interfering with the plaintiff's exclusive and enjoyment of the suit property. c.to direct the defendant to pay the plaintiff the cost of the suit.". (extracted as such) 34.In the said suit, written statement was filed. As such, the gist and kernel of the earlier suit O.S.No.99 of 1990 by the same plaintiff-Chinnakannu Naicker was to the effect that there was partition of the joint family properties as found set out in the 'A' schedule herein, even as early as in the year 1971, so to say, during the life time of his father-Thulukkanam Naicker. D1 took up the plea that there was no partition as alleged by the plaintiff, but only for convenience' sake various items of suit properties were enjoyed respectively by the co-sharers. 35.It is not the bare use of the words by the parties that would matter. In stricto sensu, it has to be seen as to whether earlier they respectively started enjoying the various items of the joint family 'A' schedule of properties separately, without the liability to account for the income derived out it to the joint family. 36.Indubitably and indisputably, unarguably and unassailably both sides in unison would state that in view of some understanding emerged among them, the three co-sharers, namely, the plaintiff-Chinnakannu Naicker, D1-Ramu Naicker and Selvaraj were enjoying respectively several items of joint family properties separately and there is no express wording found in the pleadings regarding the treatment of the income arising of it as the joint family income or the separate income of the co-sharers concerned. 37.As per the decision of the Division Bench of this Court in Kumaraswami Gounder's case if there is evidence to exemplify and demonstrate that the income derived from out of such enjoyment of the items of joint family properties by the co-sharers respectively, it should be treated as separate income of the respective co-sharers then whatever property purchased by them from out of such income should be treated as their respective separate properties. But on the other hand, if there is evidence to show that such income should be treated as the joint family income, then whatever property purchased by them should be treated as the joint family properties. This is the crucial test to be applied in this case to find out as to whether the 'B' Scheduled properties should be treated as the joint family properties or not. 38.Not to put too fine a point on it, in this case, inasmuch as the parties were not diligent enough in raising this plea adverting to the decision of the Division Bench of this Court, referred to supra, both the Courts below have not dealt with the case adhering to the aforesaid decision. 39.The learned counsel for the plaintiff would proceed to argue that in view of the finding of the Court in the earlier proceedings in O.S.No.99 of 1990 that there was no partition, which constrained the same plaintiff to file the present suit, the averments made by him in the earlier proceedings relating to the status of the co-sharers should not be used as against him and there is no estoppel also against the plaintiff and there cannot be any res-judicata operating as against him also. 40.Whereas, the learned Senior counsel for the appellants/defendants would pyramid his arguments to the effect that even though the plea of the plaintiff in the earlier proceedings was negatived to the effect that there was no partition, yet that it does not mean that whatever he averred also should not be made use of by the defendants to prove the true nature of the arrangement among the co-sharers in enjoying the joint family properties described in the 'A' Schedule of the plaint. 41.There is no gain saying of the fact that this is also a very serious law point and it has to be decided as to whether the earlier statements made by the plaintiff-Chinnakannu Naicker relating to the status of the co-sharers in enjoying the properties could be made use of for the purpose of giving a finding as to whether the said enjoyment of the joint family properties among the co-sharers without partition, should be taken as the one without any liability to render accounts for the income derived out of such properties by each of the coparceners to the joint family or not?. For the first time if this complicated issue is decided in second appeal and that too, in the absence of any issue having been raised before the lower fora, certainly the parties would have the sense of feeling that they lost the opportunity of at least one appeal as against such finding. If any one of the lower Courts decided on this point, then the parties would have had the opportunity of agitating it before this Court, and if this Court itself now decides on these complicated issues, based on both fact and law, for the first time, then certainly that would not be in the interest of justice. Hence, the matter has to be remitted back to the first appellate Court to decide on these factual-cum-legal issues and render a judgment on these points. 42.Regarding the applicability of the Hindu Succession (Amendment) Act, 2005, in the factual matrix, I would like to recollect the following decisions of the Honourable Apex Court and this Court. (i)(2009) 6 SCC99[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.". (2011) 9 SCC788[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.". (iii) The judgment of this Court reported in 2013(2) CTC641 SANTHAMANI S.SARADAMANI AND OTHERS. 43.A mere running of the eye over those precedents would show that even the Central Act, viz., Hindu Succession (Amendment) Act, 2005 (Act 39 of 2005) is applicable to the cases where no earlier registered partition or final decree emerged. In this case, admittedly, so far no registered partition or final decree emerged. In such a case, this also has to be considered by the first appellate Court on this matter, being remanded. 44.On balance, the substantial questions of law are answered as under: Substantial Question of Law (a) is decided to the effect that the first appellate Court was not justified in not taking into consideration the fact as to whether the income derived out of the respective joint family properties, admittedly under the convenient enjoyment of the co-sharers concerned, was accountable or not to the joint family as such and also in not taking into consideration the fact that the 'B' scheduled properties, which were acquired in the name of D1 should be treated as joint family properties or not, in the wake of the two judgements of the Division Bench of this Court reported in Kumaraswami Gounder and others v. Subba Gounder (died) and others (1977)90 L.W.583 and Nagayasami Naidu v. Kochadai Naidu (1970-1-M.L.J.105). Substantial Question of Law (b) is decided to the effect that the first appellate Court has to decide in this factual matrix as to the application of the Hindu Succession (Amendment) Act, 2005 which recognizes the female members as coparceners in the joint family properties, in the factual matrix of this case. 45.All told, the judgment and decree of the first appellate Court is set aside and accordingly the matter is remitted back to the first appellate Court mandating it to decide on the additional issues referred to supra, to wit, (i)Whether the income derived out of the respective joint family properties, admittedly under the convenient enjoyment of the co-sharers concerned, was accountable or not to the joint family as such and consequently whether the 'B' scheduled properties, which were acquired in the name of D1 should be treated as joint family properties or not, in the wake of the two judgments of the Division Bench of this Court reported in Kumaraswami Gounder and others v. Subba Gounder (died) and others (1977)90 L.W.583 and Nagayasami Naidu v. Kochadai Naidu (1970-1-M.L.J.105)?. and (ii)Whether the Hindu Succession (Amendment) Act, 2005 which recognises the female members as coparceners in the joint family properties is having any impact in the factual matrix of this case.?. after entertaining additionally both oral documentary evidence on those issues, and the entire case on merits afresh, within a period of four months from the date of receipt of a copy of this judgment. Both sides shall appear before the first appellate Court on 30.8.2013. Registry shall send back the records to the trial Court immediately. 46.The second appeal is disposed of accordingly. No costs. Msk To 1. The Principal District Judge, Chengalpattu.
2. The Subordinate Court Madurantakam