SUPREME COURT HOLDS THAT BURDEN OF PROOF LIES ON THE PLAINTIFF TO ESTABLISH THE NATURE OF THE SUIT PROPERTY FOR CLAIMING PARTITION
A Two Bench of the Supreme Court comprising of Justice Bela M. Trivedi, and S.V.N. Bhatti passed a Judgment dated 16.08.2023 in a recent case of H. Vasanthi Vs A. Santha (Dead) Through Lrs. And Others in Civil Appeal No. 7374 of 2008 and observed that the Plaintiff has the burden of proof to establish whether the Suit Property is in the nature of coparcenary property and if she is entitled to 1/3rd share in the said Suit Property.
Facts
(1) In the present case, one, H. Vasanthi, the Plaintiff and Appellant herein, filed a Suit bearing OS No. 746 of 1996, (Partition Suit) before VIII Additional Civil Judge, City Civil Court, Chennai (Trial Court) under Section 29A of the Hindu Succession Act, 1956 as amended in 1989 (Equal rights to daughter in coparcenary property, Tamil Nadu Amendment Act) seeking a declaration, partition, and separate possession for the Plaintiff’s one-third interest in the Property listed in the Plaint Schedule against one, H. Madhava Rao, the Defendant No. 1, H. Prakash Rao, the Defendant No.2 and A. Santha, the Defendant No.3. The Plaintiff also requested an injunction preventing the Defendants Nos. 1 and 2 from selling the Plaintiff’s one-third interest in the outhouse, which has a ground floor, first floor, and ground land with a total area of 111/3 ground (one ground and 800 square feet) (Plaint Schedule Property).
(2) The Defendants 1 and 2 are the father and brother of the Plaintiff respectively. The third Defendant purchased the Plaint Schedule Property from Defendants 1 and 2 through the process of law.
(3) The Plaintiff-Daughter’s case is that her grandfather, Dr H. Venkat Rao (Grand Father of the Plaintiff) purchased the Plaint Schedule Property together with the property on the southern side of the Plaint Schedule Property through a Registered Sale deed dated 13.09.1924. The Defendant No. 1 is the only son of Dr H. Venkat Rao and, being so, he inherited the entire property as Joint Hindu Family Property.
(4) The Defendant No. 1 and 2 entered into an Agreement of Sale with the Defendant No. 3 on 18.07.1974.
(5) That much prior to the Partition Suit, the Defendant No. 3 had filed OS No. 2595 of 1981 before the Hon’ble City Civil Court, Madras, (Trial Court) for Specific Performance of Agreement of Sale dated 18.07.1974 against the Defendant No. 1 and 2. (Specific Performance Suit)
(6) The Ld. Trial Court dismissed the Specific Performance Suit filed by the Defendant No. 3, vide Order dated 11.08.1982.
(7) Aggrieved by the Ld Trial Court Judgment and Decree dated 11.08.1982, the Defendant No. 3 filed Appeal No. 165 of 1984 (Appeal) before the High Court of Judicature at Madras (High Court) to set aside the Trial Court Order dated 11.08.1982 and direct the Defendant No. 1 and 2 to execute the Sale Deed in favour of the Defendant No. 3.
(8) The High Court allowed the Appeal No. 165 of 1984 vide Order dated 13.03.1995 and directed the Defendant No.1 and 2 to execute the Sale Deed in favour of the Defendant No.3.
(9) Aggrieved by the High Court Order dated 13.03.1995, the Defendant No.1 and 2 filed a Special Leave Petition (SLP) bearing No. SLP (C). 10689 of 1995 on 28.04.1995 before the Supreme Court of India seeking setting aside of the High Court Order.
(10) The Apex Court dismissed the S.L.P. filed by the Defendant No. 1 and 2, vide Order dated 12.05.1995 and thereby affirmed the High Court Order.
(11) The Plaintiff-Daughter’s Partition Suit bearing S. No. 746 of 1996 was dismissed by the Trial Court vide Order dated 08.08.1997, against which the Plainitff- Appellant filed First Appeal bearing No. A.S. No. 77 of 1998 (First Appeal) before the High Court of Judicature at Madras, which was dismissed vide Order dated 13.04.2007.
Supreme Court Analysis
Aggrieved by the High Court Order dated 13.04.2007 in A.S. No. 77 of 1998, the Appellant-Daughter filed Civil Appeal No. 7374 of 2008 before the Hon’ble Supreme Court. The Apex Court passed a Judgment dated 16.08.2023 and made the following observations:
i) The Apex Court pointed out that the applicability of Section 29A of the Hindu Succession Act, 1956 as amended in 1989 (Equal rights to daughter in coparcenary property, Tamil Nadu Amendment Act) is not the deciding factor in the present case. In fact, the deciding factor in this case, is whether the Suit Property is available for partition.
ii) The Supreme Court determined that the Suit Property is not partitionable, as on the effective date of the State Amendment of Section 29A, for the following reasons:
iii) A partial Partition Deed with three schedules mentioned in Exhibit A3 was already executed by and between the family members of the Defendant No. 1.
iv) The Schedule- I Property, covering the total area covered by the premises bearing No. 68, which corresponds to new No.24, G.N. Chetty Road, T. Nagar, Madras, having five grounds and 1185 square feet, was divided between Defendants 1 and 2.
v) The Schedule B Property was given to the parties to the second portion, including the Plaintiff – Appellant. The Plaintiff- Appellant acknowledged receipt of the items listed in the Schedule B Property. In this regard, the Plaintiff had acknowledged that the Defendants 1 and 2 owned the Suit Property and that she has taken separate ownership of the Schedule “B” Property by way of the partial Partition Deed.
vi) That the Plaintiff had failed to meet the burden of establishing that the Suit Property was a coparcenary property as on 25.03.1989, and the Plaintiff further failed to assert the claim for such partition.
Conclusion
Thus, based on the aforesaid observations, the Supreme Court held that the Trial Court and the High Court were justified in dismissing the Partition Suit and the First Appeal respectively, filed by the Appellant-Daughter, as the Plaintiff failed to establish that the Plaint Schedule Property was still a coparcenary property and hence, she is entitled to a share in the said Suit Property. Therefore, the Apex Court dismissed the Civil Appeal filed by the Appellant-Daughter.
K.Suneel Kumar
Associate
The Indian Lawyer
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