MADURAI BENCH OF MADRAS HIGH COURT – all sisters, seeking partition and separate possession of 1/5th undivided share to each one of the Plaintiffs and for a direction against the Defendants 1 and 2 to pay future mesne profits from the date of the plaint till the date of realisation and for costs. =As pointed by the Supreme court in S.Rathinam vs. Mariappan {AIR 2007 SC 2134}, a Will of a man is the aggregate of his testamentary intentions manifested in writing and is not a transfer.; Sangaiah Servai died only on 25.11.2010. On that date, he had an undivided 1/6th share in the suit properties. By the definition of ‘will’ he could bequeath only his property, which naturally means that he could only bequeath 1/6th undivided share. Consequently, the Appellant, who already has an existing 1/6th share, would be entitled to an additional 1/6th share in view of the bequeath made by his father Sangaiah Servai through Ex.B4. In such circumstances, the Appellant herein would be entitled to an undivided 2/6th share and the Respondents, who are the Plaintiffs would be entitled to only 1/6th share each in the suit properties. Similarly, the 4th Defendant, who was the 1st Defendant in the suit, would also be entitled to an undivided 1/6th share. This naturally means that the judgement and decree appealed against this does not warrant any interference since the Trial Court had also granted an undivided 1/6th share to each one of the Plaintiffs.

http://judis.nic.in/Judis_Chennai/list_new2.asp?FileName=127627

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Dated: 30.08.2017

RESERVED ON : 27.06.2017

PRONOUNCED ON : 30.08.2017

CORAM

THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN

AS(MD)No.25 of 2014
CMP(MD)No.12128 of 2016

S.Narayanan Appellant

Vs

1.V.Meenakshi
2.M.Saraswathi
3.A.Indira
4.S.Mariappan
5.H.Zaheer Hussain
6.M.Karunakaran Respondents

Prayer:- This Appeal Suit is filed against the judgement and decree dated
5.1.2013 made in OS.No.232 of 2010 on the file of the IV Additional District
Judge, Madurai.

For Appellant : Mr.C.Sundaravadivel

For Respondent : Mr.K.P.Narayanakumar-RR1to3

:JUDGEMENT

This appeal suit has been filed by the 2nd Defendant in OS.No.232
of 2010 on the file of the IV Additional District Court, Madurai, aggrieved
by the judgement and decree dated 5.1.2013.
2. The suit had been filed by the three Plaintiffs, namely,
V.Meenakshi, M.Saraswathi and A.Indira, who are all sisters, seeking
partition and separate possession of 1/5th undivided share to each one of the
Plaintiffs and for a direction against the Defendants 1 and 2 to pay future
mesne profits from the date of the plaint till the date of realisation and
for costs.
3. In the plaint Schedule, there were two items of suit
properties. Item (1) is the land and building in Door No.202, TS.No.783/1
and 783/2, Old Ward No.4, New Ward No.13, Madurai Town and Item (2) is the
land and building in Door No.200, in TS.No.783/5, Madurai Town.
4. As stated above, the Plaintiffs are sisters. The 1st
Defendant, S.Mariappan, and the 2nd Defendant, S.Narayanan are brothers. The
3rd Defendant, H.Zakeer Hussain and the 4th Defendant, M.Karunakaran are the
tenants in the suit properties. It has been stated that the suit property
originally belonged to one Ayyasamy Servai, who had two sons, Sangaiah Servai
and Balusamy Servai. There was a partition suit between them in OS.No.430 of
1983 and finally, the suit properties had been allotted to Sangaiah Servai.
The wife of Sangaiah Servai died 13 years prior to the filing of the suit and
Sangaiah Servai died on 14.9.2010. The Plaintiffs and the Defendants 1 and 2
are his legal representatives. The Plaintiffs claimed that the 2nd Defendant
is trying to alienate the suit properties. In such circumstances, claiming
their individual 1/5th undivided share, the Plaintiffs have filed the suit.
5. The 2nd Defendant has filed his written statement. According
to him, the father, Sangaiah Servai had executed a will dated 5.12.2001,
bequeathing his properties to him. Consequently, he claimed that both the
suit properties devolved on to him through the will and therefore, stated
that the suit should be dismissed.
6. The Defendants 3 and 4, who are the tenants, had also filed a
written statement. They stated that they are the tenants in the suit
properties. According to them, the 2nd Defendant had been receiving the
monthly rents. They claimed that they cannot be evicted except under due
process of law. The 1st Defendant had filed a written statement and did not
participate during the trial proceedings and he was set exparte.
7. On consideration of the pleadings, the court below had framed
the following issues for trial:-
1.Whether Sangaiah Servai executed a registered will in favour of the 2nd
Defendant on 5.12.2001?

2.Whether the Plaintiffs valued the suit property and proper court fee paid?

3.Whether the plaint is bad for mis joinder and non joinder of proper and
necessary parties?

4.Whether the Plaintiffs are entitled to 1/5th share and for mesne profits
from the Defendants 1 and 2?

5.To what further relief the parties are entitled to?

8. during the trial, the 1st Plaintiff was examined as PW.1 and
she marked Ex.A1 to Ex.A4. Ex.A2 is the death certificate of Sangaiah
Servai. Ex.A2 is the legal heirship certificate. Ex.A3 dated 12.6.1985 is
the copy of partition deed. Ex.A4 is the copy of election identity card. On
the side of the Defendants, three witnesses were examined. The 2nd
Defendant, S.Narayanan was examined as DW.1 and two independent witnesses,
S.M.Kamaludheen and Rajamani were examined as DW.2 and DW.3. The Defendants
marked Ex.B1 to Ex.B12. Ex.B1 dated 16.3.1950 is the copy of the will and
Ex.P2 dated 4.4.1962 is the settlement deed in favour of the Sangaiah Servai.
Ex.B3 is the death certificate of Nallammal and Ex.B4 dated 5.12.2001 is the
will executed by Sangaiah Servai. Ex.B5 to Ex.B9 are the revenue documents
and Ex.B10 to Ex.B12 are the marriage invitation cards of the three
Plaintiffs.
9. On consideration of the oral and documentary evidence, the
Trial Court had held that the suit properties were ancestral in nature and it
was further held that the will of Sangaiah Servai dated 5.12.2001, marked as
Ex.B4 had been proved in accordance with law. The Trial Court further held
that since Sangaiah Servai died on 25.11.2010, as seen from Ex.A1, death
certificate, and during the intervening period in 2005, the Succession Act
had been amended bringing about the shares in ancestral property to the
daughters of a family. Consequently, the Trial Court found that the
Sangaiah Servai’s will, which came into effect on his death on 25.11.2010,
was operative only with respect to 1/6th share. The Trial Court further
found that as on the date of death of Sangaiah Servai, the three Plaintiffs
and the two Defendants and Sangaiah Servai were entitled to undivided 1/6th
share. Consequently, the Trial Court had granted a judgement and decree in
favour of the the Plaintiffs for an individual 1/6th undivided share each and
held that the 1st Defendant was also entitled to an undivided 1/6th share and
the 2nd Defendant was entitled to an undivided 2/6th share in the suit
properties. With respect to the future mesne profits, the Trial Court had
held that the Plaintiffs were at liberty to proceed under Order 12 Rule 13 of
CPC. The suit was dismissed as against the Defendants 3 and 4. As against
the said judgement and decree, the 1st Defendant had filed the present
appeal.
10. This court heard the learned counsel on either side and also
perused the materials placed on record.
11. The main issue, which arises for consideration in the appeal
is whether the will dated 5.12.2001, marked as Ex.B4, executed by Sangaiah
Servai, the father of the Plaintiffs and the Defendants 1 and 2, but which
came into operation on his death on 25.11.2010, will have the force of
bequeathing the suit properties on the 2nd Defendant in entirety or whether
the will can be operative only with respect to the share of Sangaiah Servai
as on the date of his death.
12. Both the learned counsel contended that the will marked as
Ex.B4 had been proved in accordance with law. They also admitted that both
the suit properties were ancestral properties. The will was executed on
5.12.2001. Sangaiah Servai died on 25.11.2010.
13. In 2009 4 CTC 440 (K.V.Ramasamy Vs. K.V.Raghavan and others)
B, this court had held that after the enactment of the Hindu Succession Act,
1956 as amended to Act 39 of 2005, the daughters are to be treated equally as
coparceners along with the sons. Consequently, in this case, when the Act
came into force and when the will was not produced or revealed, the three
Plaintiffs and the Defendants 1 and 2 and their father Sangaiah Servai became
entitled to an undivided 1/6th share in the suit properties.
14. In this connection, Section 2(h) of the Indian Succession
Act, 1925 defines ‘will’ as ?the legal declaration of the intention of a
testator with respect to his property which he desires to be carried into
effect after his death.? It is pertinent to pointed out that through a
will, a person can bequeath only his properties. This naturally means that
if an ancestral property is bequeathed, the will can take effect only with
respect to the share of the testator in the said property. In this case,
Section 6 of the Hindu Succession Act, had been amended in 2005. Subsequent
to the said amendment, Section 6 of the Hindu Succession Act reads as
follows:-
?6. Devolution of interest in coparcenary property:- (1) On and from the
commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu
family governed by the Mitakshara law, the daughter of a coparcener shall,-

a. by birth become a coparcener in her own right in the same manner as the
son.

b. have the same rights in the coparcenary property as she would have had if
she had been a son.

c. be subject to the same liabilities in respect of the said coparcenary
property as that of a son, and any reference to a Hindu Mitakshara coparcener
shall be deemed to include a reference to a daughter of a coparcener:

Provided that nothing contained in this sub section 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.?

15. In this connection, the learned counsel for the Appellant has
stated that since there has been a testamentary disposition of the property
even prior to the amendment of the Hindu Succession Act and since the will
Ex.B4 had been proved in accordance with law, the property must devolve only
to the Appellant in accordance with the will. In this connection, the point,
which arises for determination, is whether mere execution of a will prior to
the amendment of Hindu Succession Act was sufficient to make the will come
within purview of expression, ‘testamentary disposition’, particularly, since
the testator died much later only on 25.11.2012.
16. A careful look at Section 6(1) would show that by the
amendment brought forth by Central Act No.39/2005, the daughter of a
coparcener in a joint Hindu family governed by the Mitakshara law was made a
coparcener by birth, in the same manner as the son and was vested with the
same rights and obligations in respect of the coparcenery property, as a son
would have. But the proviso to sub-section (1) makes it clear that nothing
therein would affect or invalidate any disposition or alienation including
any partition or testamentary disposition which had taken place before
20.12.2004.
17. Two expressions appearing in the proviso to sub-section (1)
of Section 6 are of significance. They are (1) disposition and (2)
alienation. These two expressions are followed by a rider to the effect that
any partition or testamentary disposition is also included within the purview
of these two expressions.
18. While there is no difficulty in understanding the purport of
the expression alienation, there is some difficulty in expounding the meaning
of the expression disposition. This difficulty is compounded by the inclusion
of testamentary disposition, within the meaning of the expression
disposition. Normally one would understand the expression testamentary
disposition to mean the execution of a testamentary instrument, the bequest
under which is to take effect in future, while alienation takes place in
praesenti. Therefore the confusion or difficulty posed by the proviso to
Section 6(1) is as to whether it includes a testamentary disposition that has
come into effect due the death of the testator before the crucial date or a
bequest which has not yet come into effect, due to the testator being alive
as on the crucial date.
19. The question as to whether, the Hindu Succession (Amendment)
Act, 2005 will have retrospective effect or not, has been answered by the
Supreme Court in Prakash v. Phulavat (2016)2 SCC 36. The Supreme Court held
therein that the rights under the amendment are applicable to living
daughters of living coparceners as on 9th September, 2005 irrespective of
when such daughters were born. The Supreme Court further held that
disposition or alienation including partition, which may have taken place
before 20.12.2004 as per the law applicable prior to the said date, will
remain unaffected.
20. In Pavitri Devi v. Darbari Singh, (1993) 4 SCC 392, the
Supreme Court referred to the expression ‘testamentary disposition’ appearing
in Section 30 (1) and went into the scope and ambit of the said expression in
paragraph 3. Paragraph-3 of the said decision reads as follows:
Webster in Comprehensive’ Dictionary in international edition at page 1298,
stated the meaning of the word ‘testamentary’ thus: (i) derived from,
bequeathed by, or set forth in a will; (ii) appointed or provided by, or done
in accordance with, a will; (iii) pertaining to a will, or to the
administration or settlement of a will, testamental. In the Law Lexicon by P.
Ramanatha Aiyar, reprint edition 1987 at P. 1271 testamentary instrument was
defined to mean a “testamentary instrument” is one which declares the
present will of the maker as to the disposal of his property after death,
without attempting to declare or create any rights therein prior to such
event. Black’s Law Dictionary [6th Ed. 1991] defines “testamentary
disposition” at page 1475 thus – “the passing of property to another upon the
death of the owner. A disposition of property by way of a gift, Will or deed
which is not to take effect unless the grantor dies or until that event.”
Section 123 of the Transfer of Property Act provides disposition by a gift
which takes effect even during the lifetime of the donor and effective as
soon as it is registered and normally given possession of the property
therein. Section 30 of the Act is merely declaratory of the law not only as
it stood before the Act, but as it now stands modified by the provisions of
the Act. It declares that any Hindu may dispose of by a will or other
testamentary disposition his property or interest in coparcenary which is
capable of being so disposed of by him in accordance with the provisions of
the Indian Succession Act, 1925 or any other law for the time being in force
applicable to the Hindus. Its explanation is really material. The
testamentary disposition, therefore, would mean disposition of the property
which would take effect after the death, instead of co-instentine on the
execution of the document. A testamentary disposition is generally effected
by a will or by a codicil which means an instrument made in relation to a
will extending, altering or adding to its disposition arid is to be deemed to
form part of the will. Will as defined in Section 2(h) of the Indian
Succession Act, 1925 means legal declaration of the intention of the testator
with respect to his property which he desired to carry into effect after his
demise. It limits alienation intra vivos. While the gift being a disposition
in presenting, it becomes effective on due execution and registration and
generally delivery of the possession. Section 30 makes it clear that
testamentary disposition under the Act would be dealt with in accordance with
the Indian Succession Act. Section 55 and Schedule 3 of the said Act
prescribe procedure effecting succession amongst Hindus by testamentary
succession by will or codicil. Section 30 employs non-obstinate clause and
excludes from the operation of pre-existing or any other law applicable to
coparcenery property governed by Mitakshara law and introduced fiction in its
explanation and empowers the Hindu male or female to dispose of his or her
interest by a will or any other testamentary disposition known to law-which
would be effective after the demise. It would, therefore, be difficult to
envisage that disposition by gift partakes the character of testamentary
succession under Section 30 of the Act.
21. However, the Honourable Supreme Court was concerned in
Pavitri Devi with a gift deed and not a Will. A gift is actually a transfer
of property, while a Will is not. By its very nature, a testamentary
disposition is one which does not take effect and which does not become
final, unless and until the testator dies. It is not only the bequest under a
Will, which is subject to various uncertainties, dependent upon the life and
wish of the testator, but even the right of the testator to bequeath a
particular property may undergo a change before he dies. Take for instance a
case where the testator begets a child after the execution of Will. If his
undivided share in the joint family property had been the subject matter of
the Will, his own share may undergo a change with the birth of a son after
the execution of the Will. In peculiar cases it may even happen with the
birth of a sibling to the testator. Therefore, a testamentary disposition can
never be an actual disposition in the true sense of the term, since its
coming into effect as well as the extent to which it takes effect, are always
subject to the uncertainties of time and mind, apart from birth and death. As
pointed out by the Supreme court in Mathai Samuel Vs. Eapen Eapen {(2012) 13
SCC 80}, a Will is merely a legal declaration of the testators intention
and its essential characteristic is its ambulatoriness and revocability.
22. Unfortunately, the word disposition itself emerged from the
English language and law and hence the manner in which law dictionaries have
expounded the term, is in tune more with linguistics than with law. This is
perhaps why the Supreme court pointed out in Goli Eswariah vs. Commissioner
of Gift Tax {AIR 1970 SC 1722} that the word disposition is not a term of
law, having a precise meaning and that its meaning has to be gathered from
the context in which it is used.
23. Blacks Law Dictionary defines disposition to mean the fact of
transferring something to anothers care or possession especially by deed or
will; the relinquishing of property. The same dictionary defines testamentary
disposition to mean a disposition to take effect upon the death of the person
making it, who retains substantially entire control of the property until
death. P. Ramanatha Aiyars the Law Lexicon (3rd Edition 2012) deals with the
definition of the word disposition in a variety of circumstances. One of the
several connotations given in the Law Lexicon is as follow:
The word disposition in relation to property means disposition made by deed
or will and also disposition made by or under a decree or under order of a
Court as the qualifying phrase used in Section 21(2), viz., including any
transfer in execution of a decree or order of a Court, Tribunal or authority
(Sanjay v. State of Maharashtra AIR 1986 SC 414).
24. The right of a Hindu to dispose of his property by will or
other testamentary disposition is recognised by Section 30 of the Hindu
Succession Act. It is that in Section 30, the expression testamentary
disposition is used. A careful look at the manner in which Section 30 is
worded would show two things, viz., – a) that a testamentary disposition
could be either by way of will or otherwise; and b) that what is sought to be
done through will or other testamentary disposition is considered by Section
30 to be a disposal.
25. Interestingly the Oxford English Dictionary defines the word,
whenever used as a noun in the branch of law, to mean the distribution or
transfer of property or money to someone especially by bequest. The origin
and etymology of the word disposition, as indicated in Merriam Webster
Dictionary shows that the word evolved in the 14th century from the Latin
word Disposition and from the word disponere. Though no disposition or
disposal or distribution of property takes place at the time of execution of
the Will, the word disposition has come to be associated even with
testamentary instruments.
26. But the Proviso to section 6(1) does not merely use the
expression testamentary disposition. It starts with the word disposition,
then proceeds to include testamentary disposition within its ambit and then
qualifies it with the words which had taken place. Therefore, we think that
the proviso to Section 6(1) has to be split into 3 parts
(i) the first part containing the words disposition or alienation

(ii) the second part containing the words including any partition or
testamentary disposition and

(iii) the third part containing the words which had taken place before 20-
12-2004.
27. Therefore, if a case is to be brought within the purview of
the proviso to section 6(1), especially in relation to a Will, 2 things are
to be proved namely (i) that there was a valid Will and (ii) that the
disposition under the Will had taken place before the date specified. The
disposition under a Will would take place only when the testator dies and not
otherwise. This is not only due to
the very nature of testamentary disposition but also due to the fact that
during the period between the date of execution of the Will and the date of
death of the testator, many things may happen, even beyond the control of the
testator, that would make the bequest invalid, wholly or partially.
Therefore, the expression testamentary disposition appearing in the proviso
to section 6(1) should be understood to mean only a Will which had taken come
into effect before 20-12 2004. The words which had taken place should be
understood to mean which had taken effect.
28. There is one clue available in Section 6 itself, for anyone
to come to the same conclusion as we have. It is in sub-section (5) and the
Explanation following the same. Sub-section (5) of section 6 and the
Explanation following the same, read as follows:
(5) Nothing contained in this section shall apply to a partition, which has
been effected before the 20th day of December, 2004.

Explanation: For the purposes of this section partition means any partition
made by execution of a deed of partition duly registered under the
Registration Act, 1908 (16 of 1908) or partition effected by a decree of a
Court.
29. While the proviso under sub-section (1) of section 6 excludes
from the operation of sub-section (1), any alienation or disposition,
including any partition or testamentary disposition that has taken place
before the appointed day, sub-section (5) excludes from the operation of
section 6 in entirety, a partition made by a registered deed or a partition
effected by a decree of court. It is important to note that the proviso to
sub-section (1) is confined in its applicability to sub-section (1). In
contrast, the prescription contained in sub-section (5) and the Explanation
there under, are applicable to the entirety of section 6.
30. The prescription contained in sub-section (5) and the
Explanation following the same, give a clear indication to the fact that the
law makers did not want parties to plead oral partition effected before the
appointed day, for the purpose of defeating the right created by the
Amendment Act. An oral partition or a Memorandum recording past partition,
had always been accepted by courts, subject to proof. But the Explanation to
section 6, makes it clear that unless a partition had been effected by a
registered deed or by a decree of court, the benefit of sub- section (5) may
not be available.
31. It is needless to point out that in a partition, mutual
transfers take place in presenti. Even then, the benefit of sub-section (5)
will not be available unless the partition had been effected by a registered
deed or a decree of court. Therefore, the intention of the law makers is very
clear to the effect that no one should be allowed to create documents, after
the advent of the Amendment Act of 2005, to defeat the rights conferred by
the amendment. In order to prevent the creation of ante dated documents, the
Amendment ensures that even reliance upon such documents is impermissible.
In such circumstances, if the expression testamentary disposition is taken to
mean the mere execution of a Will, the rights conferred by section 6 can be
easily defeated by parties by setting up a Will, which is not required to be
compulsorily registered.
32. Therefore, I am of the considered view that in cases where
the testator was alive as on 20-12-2004, the Will, even if any executed by
him genuinely before the said date, would not make it a case of testamentary
disposition which had taken place, so as to make the case fall under the
proviso and to take it out of the application of section 6(1). In other
words, a case will fall under the proviso to section 6(1), only if 2 things
had taken place before 20-12 2004 namely (i) execution of a Will and (ii) the
death of the testator. The execution of the Will before 20-12 2004 alone is
not sufficient to take a case out of the operation of section 6(1), as no
disposition under the Will would have taken place, if the testator was alive.
As pointed by the Supreme court in S.Rathinam vs. Mariappan {AIR 2007 SC
2134}, a Will of a man is the aggregate of his testamentary intentions
manifested in writing and is not a transfer.
33. In the present case, it is seen that Sangaiah Servai died
only on 25.11.2010. On that date, he had an undivided 1/6th share in the
suit properties. By the definition of ‘will’ he could bequeath only his
property, which naturally means that he could only bequeath 1/6th undivided
share. Consequently, the Appellant, who already has an existing 1/6th share,
would be entitled to an additional 1/6th share in view of the bequeath made
by his father Sangaiah Servai through Ex.B4. In such circumstances, the
Appellant herein would be entitled to an undivided 2/6th share and the
Respondents, who are the Plaintiffs would be entitled to only 1/6th share
each in the suit properties. Similarly, the 4th Defendant, who was the 1st
Defendant in the suit, would also be entitled to an undivided 1/6th share.
This naturally means that the judgement and decree appealed against this does
not warrant any interference since the Trial Court had also granted an
undivided 1/6th share to each one of the Plaintiffs.
34. In the result, this appeal suit is dismissed. With respect
to the mesne profits, I also hold as held by the Trial Court that the
Plaintiffs 1 to 3 are at liberty to proceed under Order 12 Rule 13 of PC. No
costs. Consequently, the connected MP is closed.

 

To:

1.The Record Keeper, VR Section, Madurai Bench of Madras High Court, Madurai.

2.The IV Additional District Judge, Madurai.
.