2018 (5) TMI 1368 - SC - Indian Laws

High Court Error: Appeal Allowed for Ancestral Property Partition

The High Court erred in dismissing the appeal at the admission stage. The appellants were not entitled to claim partition in ancestral property under the ... Equal rights to daughter in coparcenary property - coparcenary - partition - succession - succession by survivorship - bona fide purchaser - protection of sale and compensation in lieu of disturbed titleEqual rights to daughter in coparcenary property - coparcenary - partition - Whether the appellants, married before commencement of the Hindu Succession (Tamil Nadu Amendment) Act, 1989, were entitled to claim partition as coparceners. - HELD THAT: - The Court held that Section 29-A of the Tamil Nadu Amendment confers the status and rights of coparcenary on a daughter only where she is an unmarried daughter of a living coparcener at the commencement of the Amendment. Clause (iv) excludes daughters married before commencement. The Court applied the principle that the rights under such an amendment attach only to living daughters of living coparceners, relying on precedent treating the temporal survivorship requirement as determinative. Both appellants were admitted to have married in 1981 and 1984 respectively, i.e., before the 1989 amendment; hence they were not coparceners entitled to institute a suit for partition at first instance and could not claim partitionary rights under the Amendment. [Paras 9, 10, 11, 15]Appellants, being married before commencement of the 1989 Amendment, were not coparceners and were not entitled to claim partition as coparceners.Succession - succession by survivorship - devolution by succession - protection of sale and compensation in lieu of disturbed title - bona fide purchaser - The manner of devolution of the deceased father's separate share and the entitlement of the appellants to succession shares and remedy in respect of earlier sales to third parties. - HELD THAT: - The Court found that the ancestral coparcenary property had been partitioned in the lifetime of the father between him and his son, leaving the father's portion as his separate property. On the father's death and thereafter on the mother's death, the father's and mother's shares would devolve by succession under the Hindu Succession Act to the children and widow in the proportions worked out by the Court. The Court determined the final shares of the parties (expressed as fractions of the whole) based on application of the applicable succession rules. The Court declined to disturb the sales executed in favour of Respondent Nos. 2 and 3, treating them as protected; instead, it afforded the appellants a remedy by way of entitlement to their legitimate succession share in the proceeds or equivalent property. The price is to be calculated at rates prevailing on the dates of the sale deeds with interest at 9% per annum from the respective dates of sale until payment or transfer. [Paras 12, 13, 14]The Court fixed the devolution of shares by succession as indicated and upheld the sales to Respondent Nos. 2 and 3, while awarding the appellants their succession entitlement in money or equivalent property calculated at sale-date rates with 9% interest until payment or transfer.Final Conclusion: The appeal is partially allowed: the High Court's admission-stage dismissal is set aside to the extent that the Court has declared the appellants are not coparceners under the 1989 Amendment and therefore had no partitionary claim; the Court, however, adjudicated succession shares, protected the two sales to purchasers, and directed that the appellants be paid their legitimate succession share (calculated at sale-date rates) with interest at 9% per annum until payment or transfer. Parties to bear their own costs. 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.