Prayer:- These Civil Miscellaneous Appeals are filed against the Judgement and Decree dated 24.6.2008 made in AS.Nos.592/2007 and 59/2008 by the learned IV Additional Judge, City Civil Court, Chennai, remanding the suit in OS.No.4430/2005 on the file of the learned VII Assistant Judge, City Civil Court, Chennai for fresh trial. For Appellants : Mr.K.V.Sundararajan-CMA.1087/09
JUDGEMENT
1. These Civil Miscellaneous Appeals are filed against the Judgement and Decree dated 24.6.2008 made in AS.Nos.592/2007 and 59/2008 by the learned IV Additional Judge, City Civil Court, Chennai, remanding the suit in OS.No.4430/2005 on the file of the learned VII Assistant Judge, City Civil Court, Chennai, for fresh trial.
2. The above said suit was filed by the Plaintiff, who is the Appellant in CMA.No.1087/2009, for partition of her half share and for permanent injunction, restraining the 1st Defendant, who is the 1st Respondent in CMA.No.1087/2009 from interfering with her peaceful possession and enjoyment of the property. As regards the relief of partition, the suit was dismissed and as regards the other relief of permanent injunction, the suit was decreed. As against the same, the Plaintiff filed an appeal in AS.No.592/2007 and the Defendants 2 and 3, who are the Respondents 2 and 3 in CMA.No.1087/2009 also filed an appeal in AS.No.59/2008. The first appellate court set aside the decree passed by the Trial Court and remanded the matter back to the Trial Court for fresh trial, after framing necessary issues and further directed the Trial Court to dispose of the suit in accordance with law. As against the said order of remand, these appeals have been filed.
3. The short facts, which are germane to the disposal of these appeal, are as follows-
The suit property originally belonged to one Umamaheswar Rao, the father of the Plaintiff and the 1st Defendant. He died on 17.10.1983. Since Umamaheswar Rao died intestate, his wife Rajeswari, the daughter of Umamaheswararao, namely, the Plaintiff and his son, the 1st Defendant were each entitled to 1/3rd share in the suit property. During the life time of Rajeswari, she settled her 1/3rd share in favour of her grand children, the Defendants 2 and 3 herein, who are the children of the Plaintiff. As per the settlement deed, the Defendants 2 and 3 were entitled for 1/3rd share in the suit property. The Plaintiff is residing in the suit property and the 1st Defendant is also residing in a portion of the suit property. The Plaintiff has been demanding partition and since the 1st Defendant was attempting to disturb the possession of the Plaintiff and refusing to partition the suit property, the Plaintiff filed the present suit for partition and for permanent injunction.
4. The said suit was resisted by the 1st Defendant, inter alia, stating that during the life time of his father, he expressed his willingness that the entire suit property should go to the 1st Defendant. The suit property is a house property and therefore, it is incapable of division. The settlement deed executed by Rajeswari, the mother of the 1st Defendant was denied and disputed. According to him, the Plaintiff is only a permissive occupant, living in the capacity as his sister and she is not entitled to any share in the suit property.
5. The Defendants 2 and 3 contested the suit, stating that they are entitled to 1/3rd share of Rajeswari by virtue of the settlement deed dated 20.4.2001.
6. On the above pleadings, the Trial Court framed necessary issues and during the trial, the Plaintiff examined herself as PW.1 and marked Ex.A1 to Ex.A5. On the side of the 1st Defendant, he was examined as DW.1 and marked Ex.B1 to Ex.B4. The Defendants 2 and 3 were represented by their father Kulasekaran and he was examined as DW.2.
7. Before the Trial Court, it was contended by the 1st Defendant that as per Section 23 of the Hindu Succession Act, the female heir namely, the Plaintiff cannot have a right of partition over the dwelling house and therefore, contended that the suit is not maintainable. It was concluded by the Trial Court that the suit was filed even before the amendment whereby Section 23 was deleted and it has no retrospective effect and therefore, as per Section 23 of the Hindu Succession Act, the Plaintiff was not entitled to any relief. It also held that as per Section 29A of the Hindu Succession Act, since the Plaintiff got married before the commencement of the Hindu Succession (Tamil Nadu Amendment) Act, 1989, the Plaintiff is not entitled to the relief and dismissed the suit.
8. The first appellate court, placing reliance on the decision of this court reported in 2007-3-MLJ-1029 (G.Sekar Vs. Geetha and others), held that Section 23 was deleted by Hindu Succession (Amendment) Act (39 of 2005), which came into force during the pendency of the appeal and the bar stood lifted and therefore, the Plaintiff had a right to claim partition in the dwelling house. Further, the first appellate court held that since the suit property is the self acquired property of the deceased Umamaheswar Rao, Section 29A of the Act does not apply, as it speaks about co-parcenary property and the Trial Court has failed to consider the above aspects and erroneously dismissed the suit. The first appellate court further held that the Trial Court failed to decide the issue with regard to the validity of settlement deed executed by the grand mother of the Defendants 2 and 3. On the basis of the said findings, the first appellate court remanded the matter to the Trial Court for fresh trial.
9. Mr.K.V.Sundararajan, the learned counsel for the Appellant would contend that the first appellate court failed to see that the entire evidence pertaining to the execution of the settlement deed on both sides was available on record and therefore, the first appellate court ought to have decided the issue pertaining to the settlement deed by itself and there was no necessity for remand of the case. The learned counsel would further submit that the first appellate court erred in not giving a finding regarding the deletion of Section 23, by virtue of the Amended Act 2005, which came into force on 9.9.2005. The learned counsel pointed out that the first appellate court ought to have framed additional issues and decided the case on merits by itself, instead of remanding the matter back to the Trial Court for fresh trial, when the entire evidence was available on record.
10. There is no dispute that the suit property is the self acquisition of Umamaheswar Rao, who had purchased the same under Ex.A1. It is also not in dispute that he died intestate. Ex.A2 is the copy of the settlement deed executed by Rajeswari in respect of her 1/3rd share in favour of the Defendants 2 and 3. To substantiate their claim, the Defendants 2 and 3 have examined their father, namely, Kulasekaran as DW.2. On behalf of the 1st Defendant, he examined himself as DW.1 and marked Ex.B1 to Ex.B4. Therefore, the oral and documentary evidence were placed before the Trial Court by the Plaintiff and the Defendants.
11. By virtue of the Hindu Succession (Amendment) Act (39 of 2005), which came into force on 9.9.2005, Section 23 of the Hindu Succession Act was deleted. In the case of G.Sekar Vs. Geeta and others (2009-6-SCC-99), when a question arose before the Honourable Supreme Court as to whether the said amendment has retrospective operation, the Honourable Supreme Court answered as follows:- Whether a statute having prospective operation will affect the pending proceedings would depend upon the nature as also text and context of the statute. Although omission of a provision operates as an amendment to the statute, whether a litigant has obtained a vested right as on the date of institution of the suit which is sought to be taken away by operation of a subsequent statute will be a question which must be posed and answered. Section 6 of the General Clauses Act, 1897, whereupon reliance has been placed, could have been applied provided the amendment in question takes away somebody's vested right. The restrictive right contained in Section 23, Hindu Succession Act, 1956 is merely a disabling provision which cannot be held to remain continuing despite the Hindu Succession (Amendment) Act, 2005. A right in terms of Section 23 of the 1956 Act to obtain a decree for partition of the dwelling house is one whereby the right to claim partition by the family is kept in abeyance. A right of the son to keep the right of the daughters of the last male owner to seek partition of a dwelling house, being a right of the male owner to keep the same in abeyance till the division takes place, is not a right of enduring nature. It cannot be said to be an accrued right or a vested right. Such a right indisputably can be taken away by operation of the statute and/or by removing the disablement clause. Such a right could be enforced if a cause of action therefor arose subsequently. Once the said right of the daughter become enforceable, the restriction must be held to have been removed.
12. In view of the above position of law settled by the Honourable Supreme Court , the right of Plaintiff to seek for partition of the residential house could be enforceable. Once the right of the daughter becomes enforceable, restriction must be held to have been removed. As per the law laid down by the Honourable Supreme Court in the decision cited supra, the right of the Plaintiff seeking for partition of the dwelling house is maintainable.
13. The Trial Court has held that the Plaintiff is not entitled to partition in the suit property, as she had married even prior to the amended Act. Admittedly, the suit property is the self acquired property of the Umamaheswararao and therefore, Section 29A of the Hindu Succession (Tamil Nadu Amendment) Act, 1989 has no application.
14. Evidence has been adduced on behalf of the Defendants 2 and 3 about the settlement executed by Rajeswari in favour of the Defendants 2 and 3. Therefore, evidence is very much available regarding the validity of the settlement. No new plea or fresh evidence is required to decide those issues. The first appellate court ought to have framed appropriate issues to decide about the validity of the settlement, entitlement of right of the Plaintiff to seek for partition in the suit property and ought to have decided the matter on merits. The first appellate court has got power to go into the factual aspects and is empowered to decide the matter and as such, the reason given by the first appellate court for remanding the matter is not valid.
15. It is the duty of the first appellate court to discuss the merits of the contentions raised by the parties and give reasons in support of its findings. If the court does not fulfill its obligations, the parties would not get the true benefit of the first appeal which is a valuable right on the basis of which, the parties have the right to be heard on questions of law as well as fact. Therefore, the first appellate court erred in remanding the matter without even considering and discussing the evidence on record.
16. It has to be pointed out that substantial documentary evidence had been placed before the Trial Court regarding the settlement deed and oral evidence had also been led by the parties before the Trial Court, which was noticed and appreciated by the Trial Court. However, the impugned judgement in the first appeal is silent as to the documentary evidence and also the oral evidence. The first appellate court by itself can decide about the applicability of Section 29A of the Hindu Succession (Tamil Nadu Amendment) Act, 1989. The approach of the first appellate court, not adverting to all the relevant points of the case and issues and not coming to a reasoned conclusion for disagreeing with the Trial Court, is not proper and appropriate. The impugned order of remand of the first appellate court would only lead to unnecessary delay and cause prejudice to the parties. Therefore, the impugned order of remand passed by first appellate court is unjustified and unsustainable.
17. In the result, these Civil Miscellaneous Appeal are allowed, setting aside the impugned order of remand of the first appellate court. The matter is remanded to the first appellate court and the first Appellate Court is directed to dispose of appeal, on merits and in accordance with law, within a period of four months from the date of receipt of a copy of this order. No costs.