MANGAMMAL @ THULASI AND ANR.versusT.B. RAJU AND ORS.

776                       [2018]
               SUPREME COURT     6 S.C.R. 776
                              REPORTS                      [2018] 6 S.C.R.


A                 MANGAMMAL @ THULASI AND ANR.
                                        v.
                             T.B. RAJU AND ORS.
                         (Civil Appeal No. 1933 of 2009)
B                               APRIL 19, 2018
        [R. K. AGRAWAL AND ABHAY MANOHAR SAPRE, JJ.]
             Hindu Succession Act, 1956 – s.29-A – Right of daughter in
      coparcenary property – Succession by survivorship – Father of
      appellants-daughters and respondent no.1-son passed away and
C
      left behind ancestral properties – Properties were leased out to
      Respondent Nos. 2 to 4 during the lifetime of mother of appellants
      and respondent no.1 – During the lease period, she died and
      thereafter, lands were sold by respondent no.1 to respondent nos. 2
      to 4 – Appellants filed suit against respondent no.1 for partition
D     and separate possession of the properties – Trial Court while
      dismissing the suit held appellants-plaintiff were not entitled to any
      partition – Appeal was dismissed by the High Court – On appeal,
      held: U/s. 29-A of the Act, only unmarried daughter of a coparcener
      is entitled to claim partition in the Hindu Joint Family Property –
      On a plain reading of s.29-A, it is evident, inter-alia, daughter of a
E
      coparcener ought not to have been married at the time of
      commencement of the amendment of 1989 – In instant case, it is
      admitted position that both the appellants-daughters got married
      prior to the commencement of the 1989 amendment – Therefore, in
      view of cl(iv) of s.29-A, appellants could not institute the suit for
F     partition and separate possession at first instance as they were not
      the coparceners – However, from record of the case, the coparcener
      property in the hand of father of appellants got divided between
      him and his son-respondent no.1 – In such partition, father of
      appellants got ½ share and respondent no.1 also got ½ share –
      Now, the property left in the hand of father of appellants would be
G
      his separate property – On his death, such separate property would
      devolve through succession by applying the rules of ss. 8, 9 and 10
      of the Hindu Succession Act, 1956 – Therefore, the appellants not
      entitled to any share in coparcenary property since they were not
      the coparceners in view of 1989 amendment – However, on the death
H     of their father and mother, appellants-daughters would get their
                                        776
     MANGAMMAL @ THULASI AND ANR. v. T.B. RAJU                         777


property through succession – Hindu Succession (Tamil Nadu             A
Amendment) Act, 1989.
      Partly allowing the appeal, the Court
      HELD: 1. It is undisputed fact that ‘TGB’, the father of the
appellants and respondent no.1, had only ancestral properties
and he did not left behind any self acquired properties. On a plain    B
reading of the newly added provision i.e., Section 29-A of the
Hindu Succession Act, 1956, it is evident that, inter-alia, daughter
of a coparcener ought not to have been married at the time of
commencement of the amendment of 1989. In other words, only
un-married daughter of a coparcener is entitled to claim partition     C
in the Hindu Joint Family Property. In the instant case, it is
admitted position that both the appellants got married prior to
the commencement of the 1989 amendment. Therefore, in view
of clause (iv) of the Section 29-A of the Act, appellants could not
institute the suit for partition and separate possession at first
instance as they were not the coparceners. [Para 9] [783-C-E]          D

      2.1 However, as appears from the record of the case and
also in view of the contention of the parties, the coparcener
property in the hand of ‘TGB’ got divided between him and his
son-respondent No. 1. In such partition, ‘TGB’ got ½ share and
respondent no.1 also got ½ share. Now the property left in the         E
hand of ‘TGB’ would be his separate property. On his death,
such separate property would devolve through succession by
applying the rules of Sections 8, 9 & 10 of the Hindu Succession
Act, 1956 in the following manner:
       · Widow i.e. mother of the appellants would get ¼ of the        F
          half share which stands at 1/8.
       · Daughter-Appellant No. 1 would get ¼ of the half share
          which stands at 1/8.
       · Daughter-Appellant No. 2 would get the ¼ of the half
                                                                       G
          share which stands at 1/8.
       · Son-Respondent No. 1 would get the ¼ of the half share
          which stands at 1/8. This 1/8 share would be in addition
          of ½ share which he got in partition. [Para 12]
          [784-E-H; 785-A]
                                                                       H
778            SUPREME COURT REPORTS                       [2018] 6 S.C.R.


A           2.2 On the death of the widow i.e., mother of the appellants,
      her 1/8 share which she got in succession, would devolve through
      succession by applying the rules of Sections 15 & 16 of the Hindu
      Succession Act, 1956 in the following manner:
           · Daughter-Appellant No. 1 would get the 1/3 of the 1/8
B            which stands at 1/24.
           · Daughter-Appellant No. 2 would get the 1/3 of the 1/8
             which stands at 1/24.
           ·   Son-Respondent No. 1 would get the 1/3 of the 1/8 which
               stands at 1/24.
C
      Final Share of Each Person:-
           1. Daughter-Appellant No .1, total share would be 1/8 +
              1/24 = 4/24 or 1/6.
           2. Daughter-Appellant No. 2, total share would be 1/8 +
D             1/24 = 4/24 or 1/6.
           3. Son-Respondent No. 1, total share would be ½ + 1/8 +
              1/24 = 16/24 or 2/3. [Para 13] [785-B-E]
             3. Any sale which made to Respondent Nos. 2 & 3 in
      pursuance of two sale deeds shall not be disturbed anymore. In
E     lieu of the same, the appellants shall be entitled to their legitimate
      share, if any, which belonged to them in such properties and which
      had been sold through sale deeds from Respondent No. 1 by way
      of money or some other property of the same amount. The price
      of the properties shall be calculated according to the rate
F     prevailing at the date of sale deeds respectively along with
      interest @ 9 per cent per annum from the date of sale deeds till
      the payment of money or transfer of property. Here, legitimate
      share means share which appellants have got through the division
      of property as mentioned. [Para 14] [785-F-H]
G           4. To sum up the case, the appellants are not entitled to
      any share in coparcenary property since they were not the
      coparceners in view of 1989 amendment. However, on the death
      of their father and mother, appellants would get their property
      through succession in the above manner. [Para 15] [786-A-B]

H
      MANGAMMAL @ THULASI AND ANR. v. T.B. RAJU                                779


      Prakash & Ors. v. Phulavati & Ors. (2016) 2 SCC 36 ;                     A
      Danamma @ Suman Surpur & Anr. v. Amar & Ors.
      2018 (1) SCALE 657 – referred to.
                          Case Law Reference
        (2016) 2 SCC 36               referred to            Para 10
                                                                               B
        2018 (1) SCALE 657            referred to            Para 10
      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1933
of 2009
      From the Judgment and Order dated 18.09.2006 of the High Court
of Judicature at Madras in S.A. No. 780 of 2006.                               C
      V. Prabhakar, Ms. Jyoti Parasher, N. D. Ram Chandar (for
Mrs. Revathy Raghavan), Advs. for the Appellants.
     Puneeth K.G., Ms. Astha Sharma, Mohit Paul, Advs. for the
Respondents.
                                                                               D
      The Judgment of the Court was delivered by
      R. K. AGRAWAL, J. 1. This appeal is preferred against the
impugned judgment and order dated 18.09.2006 passed by the High Court
of Judicature at Madras in S.A. No. 780 of 2006 whereby learned single
Judge of the High Court dismissed the appeal filed by the appellants           E
herein at the admission stage.
      2. Brief facts:-
       (a) The case of the appellants, in a nutshell, is that the appellants
herein are the daughters of Late Shri T.G. Basuvan (died on 29.12.1979)
and Late Smt. Sundari (died on 22.07.1989) whereas Respondent No. 1            F
is the brother of the appellants herein. Late T.G. Basuvan left three
properties consisting of agriculture land (Item Nos. 1 & 2) and dwelling
house (Item No. 3)
       (b) Later on, due to the irresponsible behaviour of Respondent
No. 1, suit properties at Item Nos. 1 and 2 were leased out to Respondent      G
Nos. 2 to 4 herein during the lifetime of the mother of the appellants
herein.
      (c) During the lease period, the mother of the appellants died. On
the expiry of said lease deed, the appellants herein through legal notice
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780            SUPREME COURT REPORTS                           [2018] 6 S.C.R.


A     approached the Respondent Nos. 2 to 4 to deliver the vacant possession
      of Item Nos.1 and 2. In reply, it has been stated that the lands were sold
      to them by Defendant No. 1.
            (d) Being aggrieved, the appellants instituted a suit being O.S.
      No. 202 of 2003 praying, inter-alia, for the partition and separate
B     possession of the suit properties which consisted of three items, namely,
      agriculture land (Item Nos. 1 and 2) and building site with constructed
      building (Item No. 3) and arrayed the brother as Defendant No. 1 and
      lessees/subsequent buyers as Defendant Nos. 2 to 4. The appellants
      herein were the plaintiffs in the original suit
C            (e) The trial Court, after hearing the suit at length, dismissed the
      same, vide judgment dated 28.09.2004 while holding, inter alia, that the
      plaint is the creature of the Defendant No. 1 and the plaintiffs, who
      being the puppets in the hands of Defendant No. 1, are not entitled to
      any partition.
D            (f) Being dissatisfied, the appellants took the matter before the
      District Judge, Udhagamandalam. Learned District Judge, vide judgment
      dated 14.12.2005, dismissed the appeal while upholding the decision of
      the trial court.
              (g) Feeling aggrieved with the decision, the appellants herein
E     preferred a Second Appeal being No. 780 of 2006 before the High Court
      of Judicature at Madras. Learned single Judge of the High Court, vide
      order dated 18.09.2006, dismissed the appeal at the admission stage
      itself.
           (h) Consequently, this appeal has been filed before this Court by
F     way of special leave.
             3. We have given our solicitous consideration to the submissions
      of learned counsel appearing for both the parties and perused the relevant
      material on record.
            Point(s) for consideration:-
G            4. The short question that arises before this Court is whether in
      the light of present peculiar facts and circumstances of the case, any
      intervention of this Court is required with the impugned decision of the
      High Court?

H
      MANGAMMAL @ THULASI AND ANR. v. T.B. RAJU                                   781
                [R. K. AGRAWAL, J.]

       Rival contentions:-                                                        A
        5. At the outset, learned counsel for the appellants submitted that
the High Court failed to appreciate that no limitation has been prescribed
for filing a suit for partition by one or more co-sharers, hence, a suit for
partition cannot be dismissed as being barred by time. Further, it was
submitted that dismissal of a suit for partition by holding that the appellants   B
herein have not filed the suit within 12 years from the date of dispossession
cannot be sustained in the eyes of law specially when there is no proof
to prove dispossession and the respondents have failed to plead and
prove ouster. Hence, the impugned judgment of the High Court is liable
to be set aside at the threshold.
                                                                                  C
       6. Per contra, learned counsel for Respondent No. 1 herein
submitted that Respondent No. 1 had never been a drunkard and the
appellants made such allegations in order to defeat the sale made in
favour of Respondent Nos. 2 and 3 and that during the lifetime of their
mother, the suit properties remained un-partitioned and that the properties
at Item Nos. 1 and 2 having been legally sold to Respondent Nos. 2 and            D
3, hence, the question of seeking partition and separate possession does
not arise in any circumstance. Further, it was also pointed out that the
High Court rightly dismissed the case at admission case. Hence, this
appeal also deserves to be dismissed. Learned counsel appearing for
other respondents also submitted that they are the bona fide purchasers           E
of the suit property, hence, this appeal deserves to be dismissed being
devoid of merits.
       Discussion:-
       7. Before proceeding further, it is apt to have an understanding of
the concept of ancestral property in a nutshell. Any property inherited           F
upto four generations of male lineage from the father, father’s father or
father’s father’s father i.e. father, grand father etc., is termed as ancestral
property. In other words, property inherited from mother, grandmother,
uncle and even brother is not ancestral property. In ancestral property,
the right of property accrues to the coparcener on birth. The concept of
                                                                                  G
ancestral property is in existence since time immemorial. In the State of
Tamil Nadu, in order to give equal position to the females in ancestral
property, in the year 1989, the State Government enacted the Hindu
Succession (Tamil Nadu Amendment) Act, 1989 effective from March

                                                                                  H
782             SUPREME COURT REPORTS                               [2018] 6 S.C.R.


A     25, 1989 which brought an amendment in the Hindu Succession Act,
      1956 (for brevity “the Act”) by adding Section 29-A vide Chapter II-A
      under the heading of Succession by Survivorship. It is apt to reproduce
      the said provision herein below.
             29-A. Equal rights to daughter in coparcenary property-
B            Notwithstanding anything contained in Section 6 of this Act,-
                (i) in a Joint Hindu Family governed by Mitakshara Law, the
             daughter of a coparcener shall be birth become a coparcener in
             her own right in the same manner as a son and have the same
             rights in the coparcener property as she would have had if she
             had been a son, inclusive of the right to claim by survivorship: and
C            shall be subject to the same liabilities and disabilities in respect
             thereto as the son:
                (ii) at a partition in such a Joint Family the coparcener property
             shall so divided as to allot to a daughter the same share as is
             allotable to a son:
D                Provided that the share which a pre-deceased son or a pre-
             deceased daughter would have got at the partition if he or she had
             been alive at the time of the partition shall be allotted to the surviving
             child of such pre-deceased son or of such pre-deceased daughter:
                Provided further that the share allotable to the pre-deceased
E            child of pre-deceased son or pre-deceased daughter, if such child
             had been alive at the time of the partition, shall be allotted to the
             child of such pre-deceased child of the pre-deceased son or of
             the pre-deceased daughter, as the case may be:
               (iii) any property to which a female Hindu becomes entitled by
F            virtue of the provisions of clause (i) shall be held by her with the
             incidents of coparcenary ownership and shall be regarded,
             notwithstanding anything contained in this Act or any other law
             for the time being in force, as property capable of being disposed
             of by her by will or other testamentary disposition:
               (iv) nothing in this Chapter shall apply to a daughter married
G
             before the date of the commencement of the Hindu Succession
             (Tamil Nadu Amendment ) Act , 1989:
               (v) nothing in clause (ii) shall apply to a partition which had
             been effected before the date of commencement of the Hindu
             Succession ( Tamil Nadu Amendment) Act, 1989.
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      MANGAMMAL @ THULASI AND ANR. v. T.B. RAJU                                 783
                [R. K. AGRAWAL, J.]

       8. At this juncture, it is to be examined as to whether the appellants   A
were entitled to claim partition in ancestral property in view of the
amendment? If the answer to this question is affirmative then only further
determination of dispute would arise. Prior to the amendment, it was
only the male who would have been coparcener and entitled to claim the
partition and share from the joint family property. On the other hand,
                                                                                B
daughter did not have any right to partition and to claim share in the
ancestral property since she was not a coparcener. At the most, at the
time of partition, she could only ask for reasonable maintenance and
marriage expenses.
       9. To cut a long story short, it is undisputed fact that Late T.G.
Basuvan, father of the appellants, had only ancestral properties and he         C
did not left behind any self acquired properties. On a plain reading of the
newly added provision i.e., Section 29-A of the Act, it is evident that,
inter-alia, daughter of a coparcener ought not to have been married at
the time of commencement of the amendment of 1989. In other words,
only un-married daughter of a coparcener is entitled to claim partition in      D
the Hindu Joint Family Property. In the instant case, it is admitted position
that both the appellants, namely, Mangammal, got married in the year
1981 and Indira, got married in or about 1984 i.e., prior to the
commencement of the 1989 amendment. Therefore, in view of clause
(iv) of the Section 29-A of the Hindu Succession (Tamil Nadu
Amendment) Act, 1989, appellants could not institute the suit for partition     E
and separate possession at first instance as they were not the
coparceners.
      10. Moreover, under Section 29-A of the Act, legislature has used
the word “the daughter of a coparcener”. Here, the implication of such
wordings mean both the coparcener as well as daughter should be alive           F
to reap the benefits of this provision at the time of commencement of
the Amendment of 1989. The similar issue came up for the consideration
before this Court in Prakash & Ors. vs. Phulavati & Ors., (2016) 2
SCC 36, this Court while dealing with the identical matter held at Para
23 as under:-
                                                                                G
      23. Accordingly, we hold that the rights under the amendment are
      applicable to living daughters of living coparceners as on 9th
      September, 2005 irrespective of when such daughters are
      born……”
                                            (emphasis supplied by us)           H
784             SUPREME COURT REPORTS                           [2018] 6 S.C.R.


A            It is pertinent to note here that recently, this Court in Danamma
      @ Suman Surpur & Anr. Vs. Amar & Ors, 2018 (1) Scale 657 dealt,
      inter-alia, with the dispute of daughter’s right in the ancestral property.
      In the above case, father of the daughter died in 2001, yet court permitted
      the daughter to claim the right in ancestral property in view of the
      amendment in 2005. On a perusal of the judgment and after having
B
      regard to the peculiar facts of the Danamma (supra), it is evident that
      the Division Bench of this Court primarily did not deal with the issue of
      death of the father rather it was mainly related to the question of law
      whether daughter who born prior to 2005 amendment would be
      entitled to claim a share in ancestral property or not? In such
C     circumstances, in our view, Prakash & Ors. (supra), would still hold
      precedent on the issue of death of coparcener for the purpose of right of
      daughter in ancestral property. Shortly put, only living daughters of living
      coparceners would be entitled to claim a share in the ancestral property.
            11. Hence, without touching any other aspect in the present case,
D     we are of the view that the appellants were not the coparceners in the
      Hindu Joint Family Property in view of the 1989 amendment, hence,
      they had not been entitled to claim partition and separate possession at
      the very first instance. At the most, they could claim maintenance and
      marriage expenses if situation warranted.
E           Division of the Property:-
             12. However, as appears from the record of the case and also in
      view of the contention of the parties, the coparcener property in the
      hand of Late T.G. Basuvan got divided between him and his son
      T.B.Raju-Respondent No. 1. In such partition, Late T.G. Basuvan got ½
F     share and T.B. Raju also got ½ share. Now the property left in the hand
      of Late T.G. Basuvan would be his separate property. On his death,
      such separate property would devolve through succession by applying
      the rules of Sections 8, 9 & 10 of the Hindu Succession Act, 1956 in the
      following manner:

G           · Widow i.e. mother of the appellants would get ¼ of the half
              share which stands at 1/8.
            · Daughter Mangammal-Appellant No. 1 would get ¼ of the half
              share which stands at 1/8.
            · Daughter Indira-Appellant No. 2 would get the ¼ of the half
H             share which stands at 1/8.
      MANGAMMAL @ THULASI AND ANR. v. T.B. RAJU                               785
                [R. K. AGRAWAL, J.]

      · Son T.B.Raju-Respondent No. 1 would get the ¼ of the half             A
        share which stands at 1/8. This 1/8 share would be in addition
        of ½ share which he got in partition.

       13. On the death of the widow i.e., mother of the appellants, her
1/8 share which she got in succession, would devolve through succession
by applying the rules of Sections 15 & 16 of the Hindu Succession Act,        B
1956 in the following manner:

      · Daughter Mangammal-Appellant No. 1 would get the 1/3 of
        the 1/8 which stands at 1/24.
      · Daughter Indira-Appellant No. 2 would get the 1/3 of the 1/8          C
        which stands at 1/24.

      · Son T.B.Raju-Respondent No. 1 would get the 1/3 of the 1/8
        which stands at 1/24.

      Final Share of Each Person:-                                            D
      1. Daughter Mangammal-Appellant No .1, total share would be
         1/8 + 1/24 = 4/24 or 1/6.

      2. Daughter Indira-Appellant No. 2, total share would be 1/8 +
         1/24 = 4/24 or 1/6.                                                  E
      3. Son T.B.-Respondent No. 1, total share would be ½ + 1/8 +
         1/24 = 16/24 or 2/3.
       14. At this juncture, we would like to make it clear that any sale
which made to Respondent Nos. 2 & 3 in pursuance of two sale deeds            F
dated 03.04.1996 and 24.08.1998 respectively shall not be disturbed
anymore. In lieu of the same, the appellants shall be entitled to their
legitimate share, if any, which belonged to them in such properties and
which had been sold through sale deeds from Respondent No. 1 by way
of money or some other property of the same amount. The price of the
properties shall be calculated according to the rate prevailing at the date   G
of sale deeds respectively along with interest @ 9 per cent per annum
from the date of sale deeds till the payment of money or transfer of
property. Here, legitimate share means share which appellants have got
through the division of property as mentioned above in paragraph
Nos. 12 and 13.
                                                                              H
786                SUPREME COURT REPORTS                   [2018] 6 S.C.R.


A           15. To sum up the case, the appellants are not entitled to any
      share in coparcenary property since they were not the coparceners in
      view of 1989 amendment. However, on the death of their father and
      mother, appellants would get their property through succession in the
      above manner.
B           16. In view of above discussion, we, hereby, partially allow the
      appeal in the above terms leaving the parties to bear their own cost.


      Ankit Gyan                                           Appeal partly allowed.

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