2018 (5) TMI 1368 - SC - Indian Laws

Partition and separate possession of suit properties - concept of ancestral property - whether the appellants were entitled to claim partition in ancestral property in view of the amendment in the Hindu Succession Act, 1956 by adding Section 29-A vide Chapter II-A under the heading of Succession by Survivorship? - Held that - 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 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 and separate possession at first instance as they were not the coparceners. 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 to reap the benefits of this provision at the time of commencement of the Amendment of 1989 - 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. Division of property - Held that - 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 their respective shares. Appeal allowed in part.

Summary

Issues Involved:
1. Whether the High Court erred in dismissing the appeal at the admission stage.
2. Whether the appellants were entitled to claim partition in ancestral property under the Hindu Succession (Tamil Nadu Amendment) Act, 1989.
3. Determination of the appellants' share in the property after the death of their parents.
4. Validity of the sale deeds executed by Respondent No. 1 in favor of Respondent Nos. 2 and 3.

Detailed Analysis:

1. Whether the High Court erred in dismissing the appeal at the admission stage:
The appellants argued that the High Court failed to appreciate that no limitation is prescribed for filing a suit for partition by co-sharers, and thus, the suit for partition cannot be dismissed as barred by time. They contended that the dismissal of the suit based on the non-filing within 12 years from the date of dispossession was incorrect, especially as there was no proof of dispossession and the respondents failed to prove ouster.

2. Whether the appellants were entitled to claim partition in ancestral property under the Hindu Succession (Tamil Nadu Amendment) Act, 1989:
The concept of ancestral property was discussed, highlighting that property inherited up to four generations of the male lineage is considered ancestral. The amendment in 1989 allowed daughters to become coparceners in their own right. However, the appellants were married before the commencement of the amendment, disqualifying them from claiming partition as coparceners. The court referred to the precedent set in Prakash & Ors. vs. Phulavati & Ors., which held that the rights under the amendment apply to living daughters of living coparceners as of 9th September 2005.

3. Determination of the appellants' share in the property after the death of their parents:
The court calculated the division of the property left by Late T.G. Basuvan, who had ancestral properties but no self-acquired properties. Upon his death, his half share would devolve through succession. The widow, daughters, and son would each get a quarter of the half share (1/8). Upon the widow's death, her 1/8 share would further devolve equally among the daughters and son. Thus, each daughter's total share would be 1/6, and the son's total share would be 2/3.

4. Validity of the sale deeds executed by Respondent No. 1 in favor of Respondent Nos. 2 and 3:
The court upheld the sale deeds dated 03.04.1996 and 24.08.1998, stating they should not be disturbed. However, the appellants were entitled to their legitimate share of the property sold, calculated based on the rate at the date of sale deeds with 9% interest per annum until payment or transfer of property.

Conclusion:
The court partially allowed the appeal, concluding that the appellants were not entitled to a share in the coparcenary property as they were not coparceners under the 1989 amendment. However, they were entitled to their share through succession after their parents' deaths. The appellants could claim their legitimate share in the properties sold by Respondent No. 1, either in money or equivalent property. The parties were to bear their own costs.