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The Code Of Civil Procedure (Amendment) Act, 1956
The Indian Succession Act, 1925
Devarapalll Lakshminarayana ... vs V.Narayana Reddy & Ors on 4 May, 1976
A.I.I.M.S. Students Union vs A.I.I.M.S. & Ors on 24 August, 2001
Ramasamy Pillai And Ors. vs Marimuthu Goundan And Anr. on 27 January, 1928

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Madras High Court
D. Saraswathy, L. Latha And R. ... vs K. Krishnasamy And Ors. on 7 February, 2007
Equivalent citations: 2007 (3) CTC 712, (2007) 4 MLJ 1252
Author: R Banumathi
Bench: R Banumathi

ORDER

R. Banumathi, J.

1. Petitioners challenge the order dated 19.01.2007 passed by the Subordinate Judge, Tiruppur in E.A. No. 24 of 2007 in E.P. No. 29 of 2006 in O.S. No. 694 of 1976, dismissing the Petition filed under Section 47 C.P.C.

2. There had been various rounds of litigation regarding the subject matter. For proper appreciation of the contentious points raised by the parties, we may briefly refer to certain proceedings and relevant facts thereon. The Petitioners and Respondents 2 to 4 are Sons and Daughters of First Respondent - Krishnasamy through his first wife. The First Respondent has got one Son through his second wife - Pannerselvam, who is the Third Petitioner herein. The First Respondent was allotted 1.04 acres in a family partition between him and his brothers. On 07.06.1969, the First Respondent has sold the Suit Property to the Fifth Respondent - Mayankathal. Three Sons of Krishnasamy viz., Respondents 2 to 4 have filed O.S. No. 694 of 1976 on the file of Sub-Court, Coimbatore for Partition and separate possession of their 3/4th share, challenging the said Sale Deed executed by their Father as invalid and that it would not bind their 3/4th share. In the said Suit, the First Respondent remained exparte. By the Judgment dated 25.04.1990, the Subordinate Court, Coimbatore has held that the Sale Deed in favour of the Fifth Respondent - Mayankathal is not binding in respect of 3/4th share of Respondents 2 to 4, but it is valid only in respect of the share of the First Respondent i.e. 1/4th share. The Title of Mayankathal in respect of 1/4th share out of 1.04 acres was held to be valid and binding between the parties.

3. In I.A. No. 894 of 1990, final decree was passed on 25.10.1993. Respondents 2 to 4 were allotted 78 cents and the Fifth Respondent - Mayankathal was allotted 24 cents. The other Respondents have purchased 24 cents from the legal heirs of Mayangathal.

4. After the final decree proceedings were over, the First Respondent has started another round of litigation and filed O.S. No. 277 of 1996 on the file of District Munsif Court, Tiruppur against the Purchasers from Mayankathal for Declaration of his Title to the Suit Property, alleging that the Sale Deed dated 07.06.1969 effected by him in favour of Mayankathal is a sham and nominal document and he did not convey the property. Stating that he is in possession of the property, the First Respondent also prayed for Permanent Injunction. By the Judgment dated 31.03.2003, O.S. No. 277 of 1996 was dismissed interalia on the ground that the Suit is barred by the principles of resjudicata in view of the suit in O.S. No. 694 of 1976. Appeal in A.S. No. 25 of 2003 filed by the First Respondent was also dismissed on 25.02.2004. The First Respondent filed Second Appeal in S.A. No. 195 of 2005 and the said Second Appeal is pending. In the meantime, for taking delivery of the property allotted in the final decree proceedings in O.S. No. 694 of 1976, the Purchasers have filed E.P. No. 29 of 2006. The Execution Court has ordered delivery of possession. Challenging the same, earlier the First Respondent has filed C.R.P. No. 1720 of 2006, which was dismissed by me on 14.12.2006.

5. Thereafter, on 05.01.2007, the Petitioners, who are the Daughters of the First Respondent have filed Petition under Section 47 C.P.C and another Application under O.21 R.97 C.P.C contending that the Decree in O.S. No. 694 of 1976 is inexecutable. According to the Petitioners, being Daughters, they have acquired right in the Suit Property on 25.03.1989 by virtue of the Tamil Nadu Hindu Succession Amendment Act 1989 (for short "T.N.Act 1 of 1990").

6. The contention of the Petitioners is that all three Petitioners by law had acquired a share and their non-joinder in the Suit before preliminary decree is fatal and entire proceedings are vitiated and the decree is inexecutable.

7. Observing that the Petitioners have slept over the matter for more than 3 1/2 decades, the Execution Court dismissed the Application holding that the Petitioner's claim cannot be entertained under the shadow of claim under Order 21 Rule 97 C.P.C nor under Section 47 C.P.C.

8. The order is impugned contending that the share of the Petitioners in the coparcenary property ought to have been declared. Placing reliance upon the decision reported in Sai Reddy v. Narayana reddy and Ors. , it was contended by the learned Counsel for the Petitioners that unless and until the final decree is passed and the allottees of the shares are put in possession of the respective property partition is incomplete. It was further submitted that the Petitioners share is to be worked out and the decree as it stands is inexecutable.

9. Countering the arguments, learned Counsel for the contesting Respondents raised strong objection for maintainability of the Petition filed under Section 47 C.P.C. It was further submitted that the scope of Enquiry in Section 47 C.P.C is very limited and the Court cannot go into the other aspects. In support of his contention, learned Counsel for the Respondents has placed reliance upon the decisions reported in Kalyanasundaram Ayyar v. Subramanya Ayyar 67 L.W. 1159, Ramasamy v. Marimuthu and Ors. 1985 (1) M.L.J. 46 and M. Baskaran v. M. Sabathy 2007 (1) M.L.J. 484.

10. As the Daughters of First Respondent, Petitioners claim share in the family properties as per T.N. Act 1 of 1990. T.N. Act 1 of 1990 has retrospective effect from 25.03.1989. According to the Petitioners, since the final decree was not passed before 25.03.1989 and the final decree passed in 1993 without allotting shares to the Daughters is nullity and inexecutable. In the Petition, it is averred that the Petitioners are married subsequent to the commencement of T.N. Act 1 of 1990. Absolutely no material has been produced showing that the Petitioners were married after the commencement of T.N.Act 1 of 1990. Though the Suit property was the subject matter of various rounds of litigations, the Petitioners have not chosen to implead themselves in the Suit nor claimed any share. The Petitioners have made the claim only as the last effort to stall the Execution Proceedings after their Father had become unsuccessful in various rounds of litigations.

11. Be that as it may, let us consider the case of the Petitioners on merits. Partition Suit O.S. No. 694 of 1976 was decreed on 25.04.1990. Final Decree was passed on 25.10.1993. Of course, both preliminary and final decree are after the commencement of the Act. It is to be noted that the Partition Suit in O.S. No. 694 of 1976 was earlier decreed on 08.04.1980. Appeal in A.S. No. 894 of 1980 was preferred before the High Court and the matter was remanded by the Order dated 22.10.1987. Thereafter, additional evidence was adduced and the Suit was again decreed on 25.04.1990, declaring 3/4th shares of the Respondents 2 to

4. Thereafter, final decree was passed on 25.10.1993. Filing of the Suit for Partition on 13.10.1976 is an expression of desire of a partition, which has the effect of division in status. On the date of demand of partition, i.e., on the date of filing of the Suit, there was division in status.

12. Under Section 29-A(v) of T.N.Act 1 of 1990 "...nothing in Clause (ii) shall apply to a Partition which had been effected before the date of the commencement of the Hindu Succession (Tamil Nadu Amendment) Act, 1989".

13. As per Hindu Succession Amendment Act 39 of 2005, "...nothing contained in Section 6 Sub-section (1) of Hindu Succession Act shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December 2004...." Thus, either under Tamil Nadu Act or under Hindu Succession Amendment Act, the Petitioners cannot seek to re-open the matter, more so at the belated stage.

14. Placing reliance upon the decision reported in Sai Reddy v. Narayana Reddy and Ors. learned Counsel for the

Petitioners contended that until final decree is passed and shares are allotted the Partition is incomplete and the Daughters can claim their shares by reallotment of the shares. To advance substantial justice to the Daughters, who are legitimately entitled to a share in the co-parcenary property, in the said decision, the Supreme Court has held as follows:

...The crucial question, however, is as to when a partition can be said to have been effected for the purposes of the amended provision. A partition of the joint Hindu family can be effected by various modes, viz., by a family settlement, by a registered instrument of partition, by oral arrangement by the parties, or by a decree of the Court. When a Suit for partition is filed in a Court, a preliminary decree is passed determining shares of the members of the family. The final decree follows, thereafter, allotting specific properties and directing the partition of the immovable properties by metes and bounds. Unless and until the final decree is passed and the allottees of the shares are put in possession of the respective property, the partition is not complete. The preliminary decree which determines shares does not bring about the final partition. For pending the final decree the shares themselves are liable to be varied on account of the intervening events. In the instant case, there is no dispute that only a preliminary decree had been passed and before the final decree could be passed the amending Act came into force as a result of which Clause (ii) of Section 29-A of the Act became applicable. This intervening event which gave shares to respondents 2 to 5 had the effect of varying shares of the parties like any supervening development. Since the legislation is beneficial and placed on the statute book with the avowed object of benefitting women which is a vulnerable section of the society in all its stratas, it is necessary to give a liberal effect to it. For this reason also, we cannot equate the concept of partition that the legislature has in mind in the present case with a mere severance of the status of the joint family which can be effect by an expression of a mere desire by a family member to do so. The Partition that the legislature has in mind in the present case is undoubtedly a partition completed in all respects and which has brought about an irreversible situation. A preliminary decree which merely declares shares which are themselves liable to change does not bring about any irreversible situation. Hence, we are of the view that unless a partition of the property is effected by metes and bounds, the daughters cannot be deprived of the benefits conferred by the Act. Any other view is likely to deprive a vast section of the fair sex of the benefits conferred by the Amendment. Spurious family settlements, instruments of partitions not to speak of oral partition will spring up and nullify the beneficial effect of the legislation depriving a vast section of women of its benefits....

15. In the above said case before the Supreme Court, Partition suit was between Father and Brother. In the said Partition Suit, High Court has directed that the expenses incurred for the maintenance and marriage of Respondents 2 to 5 shall be borne equally by the Appellant, the Father and Brother. In the meanwhile, Hindu Succession (A.P.Amendment) Act, 1986 came into force with effect from 05.09.1985. As per the Hindu Succession (A.P.Amendment) Act, if the Partition had been effected before the date on which the Amending Act came into force, the Daughter even though unmarried was not given a share in the family property. The legislature did not want to unsettle the settled position. In the pending Partition Suit, in lieu of the provision made for their marriage expenses, Daughters filed Application for allotment of their share in the family property. In that context, the Supreme Court has held that unless and until final decree is passed and specific share is allotted, the Partition is not complete.

16. The above decision cannot be applied to the case in hand. The Petitioners herein have not taken any steps either immediately after the Tamil Nadu Hindu Succession Act came into force or in the final decree stage. Nearly two decades after the preliminary decree was passed, the Petitioners have filed Application under Section 47 C.P.C mainly to thwart the Execution Proceedings after their father had become unsuccessful in other rounds of litigation.

17. Contending that in cases where the sharers are deprived of their legitimate share, the Court can suo motu exercise the powers under Section 115 C.P.C, learned Counsel for the Petitioners placed reliance upon the decision reported in Annapoorni v. Janaki 1995 (1) L.W. 141. In the said Suit, title to the suit property was granted in favour of the Wife, who filed the Suit for Declaration of the Suit Property on the death of her husband and also sought for recovery of possession from the Defendant, who was none other than the Mother of the Deceased Husband, i.e., Mother-in-law of the Plaintiff, who was also entitled to half share in the Suit property. The lower Court decreed the Suit and granted Declaration to the Plaintiff. Since Mother of the Deceased is also entitled to half share and the decree suffers from an error of law apparent on the face of record owing to non-application of mind of the Court to the relevant principles of law, this Court suo motu has taken the case and ordered issuance of Notice to prevent miscarriage of justice. The said case has no application to the case in hand nor had there been any such miscarriage of justice.

18. If the Petition under Section 47 C.P.C is to be entertained on the ground that the Daughters share were not declared, the settled matter would become unsettled. If the decree is to be held inexecutable at this distant point of time, it would cause great prejudice to the Purchasers, who had been fighting out the litigation for several decades. Alleging that they are in possession of the properties, the Petitioners have also filed Application under Order 21 Rule 97 C.P.C. As noted earlier, the First Respondent has filed O.S. No. 277 of 1996 for Declaration and Permanent Injunction alleging that he continues to be in possession of the property. While so, the contention of the Petitioners that they are in occupation of the property is contradictory to the stand of the First Respondent. It is stated that as against the dismissal of the Application under Order 21 Rule 97 C.P.C, the Petitioners have filed Appeal before the District Curt.

19. The Execution Court has rightly dismissed the Petition filed under Section 47 C.P.C. The Execution Court cannot go behind the decree and is to execute the decree as it stands. The Execution Court has rightly dismissed the Application under Section 47 C.P.C and the Impugned Order does not suffer from any serious infirmity calling for interference. This Revision has no merits and is bound to fail.

20. In the result, the Impugned Order dated 19.01.2007 of the Subordinate Judge, Tiruppur in E.A. No. 24 of 2007 in E.P. No. 29 of 2006 in O.S. No. 694 of 1976 is confirmed and this Civil Revision Petition is dismissed. No costs. Consequently, the connected M.P. No. 1 of 2007 is dismissed.