Case BriefsHigh Courts

Madras High Court: R. Subramanian, J., dismissed the second appeal filed in regard to suit for partition and granting possession of share to a daughter as coparcener on finding no substantial question of law.

In the instant second appeal, plaintiffs are aggrieved by the dismissal of their suit for partition and separate possession of their 1/3rd share.

What did the plaintiffs contend?

Plaintiffs stated that the suit properties belonged to Rasappa Gounder who died in the year 1980 leaving behind one son and two daughters. One of the daughters is the wife of the first plaintiff and mother of the second plaintiff, died on 20-04-1987.

Plaintiffs claimed that as the daughter she would become a coparcener upon enactment of Hindu Succession (Amendment Act 39 of 2005) Act, the plaintiff’s would seek a 1/3rd share in the estate of Rasappa Gounder.

Defendants Contention

Defendants contended that the predecessor in interest viz., Rasappa Gounder died in the year 1980 and after his death, there was an arrangement under which the daughters and the second defendant Subbayal relinquished their share in Rasappa Gounder’s estate upon receipt of Rs 25,000.

It was also stated that defendant 1 was in possession of the property as an absolute owner and sold a portion of the properties to the knowledge of Poornam, plaintiffs and second defendant.

Therefore, it was contended that the plaintiffs were effectively ousted from the enjoyment of the property by the first defendant.

Second defendant supported the above contentions and stated that she and her sister had received a sum of Rs 25,000 in full quit of their share and have no claim over the properties of the deceased.

Trial Court

Trial Court had held that since Rasappa Gounder died in 1981, the succession having opened on the death of Rasappa Gounder, Poornam would not become a coparcener.

Vineeta Sharma v. Rakesh Sharma, (2020) SCC Online 641

Change in law brought by the above-cited decision of the Supreme Court would not have helped the plaintiff, since the daughter herself had died in 1987 even prior to the enactment of the Hindu Succession (Amendment Act 39 of 2005) Act.

Hence, the claim that the daughter becomes a coparcener was rejected by the trial court.

In view of the above, a second appeal was filed.

Counsel A. Thiyagarajan appeared for the appellants.

Decision

Bench stated that if the claim of the plaintiffs was to be restricted to Section 8 of the Hindu Succession Act, then the devolution of the estate happened on the death of Rasappa Gounder in the year 1981. The instant suit has been filed 30 years thereafter in the year 2011.

Hence the Court stated that it is a stale claim which is sought to be resurrected for some other reason.

Therefore, Court found no substantial question of law and dismissed the second appeal. [C.P. Subramaniam v. Deivasigamami,  2020 SCC OnLine Mad 5206, decided on 16-10-2020]

Case BriefsHigh Courts

Karnataka High Court: Krishna S Dixit, J. dismissed a petition in limine, filed against an order of the Senior Civil Judge; on the ground of insufficiency of provisions of law and inability of the petitioner to support the legal contentions.

The petitioner herein was a party in a final decree proceeding arising out of a suit for partition and is aggrieved by the dismissal of his obstructor application under Order 21 Rule 97 and 101 read with Section 151 of Code of Civil Procedure, 1908 to re-adjudicate the rights of the parties. Hence, this petition.

Issue: Whether a Hindu widow, on contracting marriage, is divested of the property that has been vested in her by way of succession to the estate of the deceased husband?

The petitioner was represented by H.V. Manjunatha and  R. Manjuladevi who contested that respondent had contracted second marriage after the death of her first husband and therefore, she was divested of the property inherited from the deceased husband upon remarriage. Hence, there was a need for fresh adjudication of rights qua the respondent.

The Court’s conclusion consisted of a two-fold observation. Firstly, for an obstructor’s application, accrual of an independent cause of action which obstructs the execution of a decree is required. Secondly, contentions have to be supported by provisions of law or rulings, which the petitioners failed to do. It was held that a widow cannot be deprived of property by mere remarriage, subject to any just exceptions. A widow is the full owner of the property (Section 14 of Hindu Succession Act, 1956) and therefore such stipulations do not align with the intent of the legislature to bring gender equality.

High Court laid emphasis on Cherotte Sugathan v. Cherotte Bharathi, (2008) 2 SCC 610 and noted that the contested Hindu Widows’ Remarriage Act, 1856 also stood repealed by the Parliament which further elucidated on the above-mentioned question of law. In light of the aforesaid rationale, the Court dismissed the petition in limine.[A.N. Amruth Kumar v. A.N. Vanitha, 2019 SCC OnLine Kar 683, decided on 13-06-2019]

Case BriefsForeign Courts

Court of Appeal for the Democratic Socialist Republic of Sri Lanka: The Bench of M.M.A. Gaffoor, J. dismissed an appeal against an order rejecting an intervention application in a suit for partition, holding that the same was statutorily barred and because the impugned order was merely an interlocutory order.

Appellant herein was a plaintiff in a partition suit filed in the District Court of Kurunegala and have given evidence before the learned District Judge in the trial. Since the respondent-defendant contested the suit only on the basis of appellant-plaintiffs evidence, the case concluded and a final decree was issued. Thereafter, appellant-plaintiff filed an application for intervention under Section 328 of the Civil Procedure Code, 1890 in order to file their objections to dispossession. After an inquiry, the learned District Judge dismissed the said petition of the appellant-plaintiff. Aggrieved thereby, the instant appeal was filed.

Counsel for the respondent-defendant Mr Gayanga Wijethunga submitted that the instant appeal was not maintainable on the following grounds:

  • There is no right of appeal as the impugned order was not a final order but only an interlocutory order.
  • In any event, there is no right of appeal as Section 329 of the Code bars an appeal from an order made under Section 328 of Code.

At the outset, the Court held that the impugned order was an interlocutory order in terms of Section 754(2) of the Civil Procedure Code. Reliance in this regard was placed on Senanayake v. Jayantha, SC Appeal No. 41/15 and SC CHC 37/08, where it was held that if an order finally disposes of the matter in dispute, it is a final order but if the nature of order is such that it allows the action to go on, then it is an interlocutory order. Further, it was opined that the effect of an order under Section 328 is subject to the same conditions of appeal. As such, denial of a right of appeal is embodied in Section 329 of the Code itself.

In view of the above, the appeal was dismissed.[Wannahaka Mudiyanselage Heen Amma v. Wijesingha Mudiyanselage Punchi Banda Wanaduragala, C.A. 445/97 (F), decided on 05-04-2019]