Chameli Devi v. Mewa — 1976 DIGILAW 403 (ALL)

JUDGMENT Mohd. Hamid Hussain, J. 1. THIS is a second appeal by the plaintiffs who filed suit No. 114 of 1963 for partition of the house specified in the plaint. 2. THE allegations in the plaint were that the disputed house was ancestral property of Ram Nath and Vishwa-nath who were sons of Har Nanuan Sahu. The pedigree showing the relationship of the parties was also given in the plaint. It was alleged in the plaint that Vishwanath had separated from his brother Ram Nath and died on 15-9-56 and the share of Vishwanath in the disputed house devolved on the plaintiffs who were his wife, three daughters and two sons. Ram Nath sold the disputed house on 25-11-56 in favour of Mewa who was arrayed as defendant no. 1 in the suit. Mewa had demolished part of the disputed house and usurped its material causing a loss of Rs. 100/- to the plaintiffs. Ram Nath who sold the house having died, his son Radhe Mohan and widow Smt. Mahadei were also arrayed as defendants. The pedigree given in the plaint was admitted by the defendants. They, however contended that Vishwanath remained as a member of Joint Hindu family governed by Mitakshara Law, and in the state of jointness Vishwanath had died, that Ram Nath was Karta of the joint family and in that capacity looked after the affairs of the family and the coparcenary property and executed sale deed of the disputed house for legal necessity, namely, for repaires of the house, marriage of Vishwanath's daughter Smt. Shakuntala, for the family business and for the maintenance of the family members. On the pleadings of the parties the trial court framed several issues. The trial court held that plaintiff Smt. Chameli Devi had failed to establish that Ram Nath and Vishwanath were separate. It also held that Ram Nath was elder member of the family. The trial court, however was of the opinion that the disputed property was not the coparcenary property and Ram Nath was not entitled to transfer the disputed house in his capacity as Karta of the family. The trial court further held that Mcwa defendant no. 1 was not a bonafide purchaser of the disputed house. Accordingly the trial court decreed the suit of the plaintiffs for partition declaring them to be owners of half-share in the disputed house. 3. The trial court further held that Mcwa defendant no. 1 was not a bonafide purchaser of the disputed house. Accordingly the trial court decreed the suit of the plaintiffs for partition declaring them to be owners of half-share in the disputed house. 3. AGGRIEVED by the decree of the trial court defendant Mewa preferred an appeal, and the learned Civil Judge who heard the appeal held that the case as set up by the defendants that Vishwanath and Ramnath were members of a joint Hindu family was fully proved, and that Ramnath as Karta of the joint Hindu family for himself, Vishwanath and his sons could alienate the coparcenary property for legal necessity of the family. The lower appellate court also held that the disputed property was coparcenary property of Ramnath and Vishwanath. It also held that there was legal necessity of the family for which the disputed house was sold. On these findings the lower appellate court allowed the appeal, set aside the judgment and decree of the trial court and dismissed the suit of the plaintiffs. 4. SRI Rajendra Kumar and SRI M. C. Tewari, learned counsels have appeared in support of this appeal, and SRI Sankatha Rai, learned counsel has appeared for the respondents. The learned counsel of the parties have been heard at length. The only contention which has been raised and argued at length in this appeal is that after the enforcement of the Hindu Succession Act 1956 the share of Vishwanath in the disputed house would devolve on his legal heirs and even though Vishwanath may have remained joint with his brother Ramnath the interest of Vishwanath in the joint property would be deemed by fiction of law to have been partitioned and defined immediately before the death of Vishwanath and his heirs would be entitled to that specified share of Vishwanath in the disputed house and Ramnath had no fight as Karta of the family to dispose of the share of the plaintiffs. Further, the share of the minors could not be sold without prior authority of the court as required under the Hindu Minority and Guardianship Act. Further, the share of the minors could not be sold without prior authority of the court as required under the Hindu Minority and Guardianship Act. Elaborating the above contention learned counsel has stated that the Hindu Succession Act (Act No. XXX of 1956) came into force on the 17th June 1956, and the Hindu Minority and Guardianship Act (Act No. 32 of 1956) came into force on the 25th August 1956, while Vishwanath died on 15th September 1956, that is, subsequent to the enforcement of the two aforesaid Acts. According to the learned counsel the Hindu Succession Act under section 4 over-rides the provisions of Hindu Law with regard to inheritance, and the succession to the Mitakshara coparcenary property will be governed by the proviso to section 6 of the said Act when a male Hindu dies leaving him surviving a female relative specified in class 1 of the schedule. 5. SRI Sankatha Rai, learned counsel for the respondents, on the other hand, contends that the interpretation put by the learned counsel for the appellants on sections 4 and 6 of the Hindu Succession Act, 1956 is incorrect and to the instant case the rule of inheritance under the Hindu Law will be applicable. 6. THE learned Civil Judge who decided the appeal while holding that Ramnath and Vishwanath remained joint and they along with their sons formed a coparcenary body and that the disputed house was their coparcenary property, did not consider the question of the applicability of Section 6 of the Hindu Succession Act, 1956, although the trial court in its judgment while considering issue no. 2, namely "What is the share of the plaintiffs in the property in suit ?" had observed that : "All this leads to the inference that after the death of Vishwanath his interest in the property devolved on his heirs under section 6 of the Hindu Succession Act". The consideration of the question of the applicability of the Hindu Succession Act to the facts and circumstances of this case was essential for the lower appellate court. In paragraph 2 of the plaint it was stated that Ramnath and Vishwanath who were real brothers had separated and thereafter Vishwanath Sahu died on 15-9-1956. It is proved from the record, and also accepted by the courts below, that Vishwanath Sahu died on 15-9-56. In paragraph 2 of the plaint it was stated that Ramnath and Vishwanath who were real brothers had separated and thereafter Vishwanath Sahu died on 15-9-1956. It is proved from the record, and also accepted by the courts below, that Vishwanath Sahu died on 15-9-56. There is no controversy that the plaintiffs are the wife, sons and daughters of Vishwanath Sahu deceased. It is also not in dispute that the Hindu Succession Act (No. 30 of 1956) came into fore on the 17th June 1956 and the Hindu Minority and Guardianship Act (No. 32 of 1956) came into foroe on the 25th August, 1956. Thus the death of Vishwanath occurred after the coming into force of the two aforesaid Acts. Section 4 of the Hindu Succession Act provides as under :- S. 4. "(1) Save as otherwise expressly provided in this Act,- (a) any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in forge immediately before the commencement of the Act shall cease to have effect with respect to any matter for which provision is made in this Act. (b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act. (2) For the removal of doubts it is hereby declared that nothing contained in this Act shall be deemed to affect the provisions of any law for the time being in force providing for the prevention of fragmentation of agricultural holdings or for the fixation of ceilings or for the devolution of tenancy rights in respect of such holdings." From the underlined portions (herein in italics) of clauses (a) and (b) of subsection (1) it is apparent that such provisions of any other law, including the Hindu Law, with respect to any matter for which provision is made in this Act or which is inconsistent with any of the provisions contained in this Act shall cease to have effect. 7. IN the light of the devolution of the interest in coparcenary property, Section 6 provides that S. 6. 7. IN the light of the devolution of the interest in coparcenary property, Section 6 provides that S. 6. "When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act Provided that, if deceased had left him surviving a female relative specified in class I of the Schedule or a male relative, specified in that class who claims, through such female relative the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be under this Act and not by survivorship. Explanation 1.-For the purposes of this section, the interest of a Hindu Mitakshara coparcenary shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death irrespective of whether he was entitled to claim partition or not. Explanation 2.-Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein." 8. SECTION 6 recognises devolution by survivorship in respect of Mitakshara coparcenary property in the event of a male Hindu dying leaving him surviving members of the coparcenary body only but the proviso to section 6 provides that if the deceased male Hindu had left him surviving a female relative specified in class I of the schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession and not by survivorship. This means that if a male Hindu having an interest in the Mitakshara coparcenary property dies after the commencement of the Hindu Succession Act and leaves surviving him a female relative specified in class I of the Schedule, then the interest of the deceased in the Mitakshara coparcenary will be governed under the Hindu Succession Act even though there may be surviving members of the coparcenary body. A coparcenar under the Mitakshara Law has only an interest and not a share in the comparcenary property and it is only on partition if so desired by one of the coparceners, that the share of the said coparcener is determined on a partition of the property. The question would arise that if the deceased male Hindu had only an interest in the coparcenary property at the time of his death and his interest is to devolve on his heirs under section 6 of the Hindu Succession Act, then how that interest of the deceased coparcener can be determined. This has been provided for in Explanation 1 to SECTION 6 which envisages that for the purposes of SECTION 6 the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death. By this Explanation 1 a notional partition is deemed to take place immediately before the death of the Hindu male to enable the relatives of the deceased specified in class I of the Schedule to inherit the share of the deceased coparcener. On a careful reading of the proviso to SECTION 6 it is obvious that if a male Hindu coparcener leaves on his death not only sons that would be coparceners with the deceased during his lifetime in the coparcenary property but also female relatives such as wife and daughters, then the devolution of the interest of the deceased Hindu coparcener would be governed by proviso to SECTION 6 of the Hindu Succession Act and there will be a partition of the coparcenary property by fiction of law of the interest of the deceased male Hindu coparcener immediately before his death. While considering the proviso and Explanation 1 of Section 6 of the Hindu Succession Act a Division Bench of the Madras High Court in the case Veerasekhara Varmarayar v. Amirthaval-liammal, AIR 1975 Madras 51, has observed : "The language of the proviso and Explanation I, which applies to the proviso alone, is clear. The objection of the enactment is to introduce a certain female heirs in the Hindu Law of succession and confer on them rights in the property or interest of the deceased coparcener. The objection of the enactment is to introduce a certain female heirs in the Hindu Law of succession and confer on them rights in the property or interest of the deceased coparcener. That object has to be given effect to as provided for in the statute and the said right cannot be whittled or watered down by having recourse to any other provision of customary or traditional Hindu Law. The Division Bench further observed that (at page 56 Col. 2 of AIR 1975 Mad.) : "We are of the opinion that the intention of the fiction created by Explanation 1 that a notional partition must be deemed to have taken place immediately before the death of the coparcener concerned is to crystallise the interest of that coparcener not merely with regard to the fraction that he will be entitled to in the entire joint family properties but also with regard to the joint family properties with reference to which that fraction will operate........................................... Consequently, the karta will have no right to deal with that property thereafter. Since the right of the Karta to deal with the property is dependant upon the property being joint family property once the particular interest ceases to be part of the joint family or the coparcenary property, the right of the Karta with reference thereto automatically and inevitably comes to an end." At another place in the judgment their Lordships have observed (at page 59 Col. 2 of AIR 1975 Mad.) :- "There is yet another circumstance which supports our. conclusion. As is clear, the proviso to Section 6 deals not only with intestate succession, but also testamentary succession. Section 30 expressly enables a coparcener to dispose of his interest in the coparcenary property testamentarily. In the event of a testamentary succession, from the very nature of the case, the legatee's interest is crystallised and specified at the moment of the death of the testator. The legatee may be an utter stranger to the entire family. In that event, it cannot be contended that so long as the legatee has not filed a suit f or partition, the Karta is entitled to deal with the deceased coparcener's interest in the coparcenary property, as if the same remained undisposed of. The legatee may be an utter stranger to the entire family. In that event, it cannot be contended that so long as the legatee has not filed a suit f or partition, the Karta is entitled to deal with the deceased coparcener's interest in the coparcenary property, as if the same remained undisposed of. Consequently, Section 6 has to be construed in such a way that it gives effect to the object of the Legislature not only with regard to testamentary succession but also with regard to intestate succession." 9. WITH the view of the Division Bench quoted above with regard to the interpretation of Section 6, its proviso and Explanation 1, I am in respectful agreement. 10. IN the case Kanahaya Lal v. Smt. Jumna Devi, AIR 1973 Delhi 160, while interpreting Section 6 of the Hindu Succession Act it has been held by the Division Bench that :- "An analysis of the section shows that the Mitakshara coparcenary property has been allowed to devolve by survivorship on the surviving members of the coparcenary and not by way of succession under the Act, but an exception has been carved out of this rule of law by the proviso that if the deceased dies, leaving behind him a surviving female relative specified in class I of the Schedule (the other part is not material) which would include a widow and the daughters, then the rule of law is that the interest of the deceased in the Mitakashara coparcenary shall devolve by succession (Testamentary or intestate) under the provisions of the Act and not by survivorship. To work out the rights, an explanation has been added which provides for a notional partition in the family at the time of the death of the deceased and then the share which would upon a partition, have been allotted to the deceased just before his death would constitute the property which would be inherited by the heirs in accordance with the provisions of Section 8 of the Act amongst the heirs specified in the First Schedule." Similar view as expressed in the afroresaid two decisions on the interpretation of section 6, its proviso and Explanation I of the Hindu Succession Act was expressed by a Full Bench in the case Sushila Bai Ram Chandra Kulkarni v. Narain Rao Gopal Rao Deshpande, AIR 1975 Bombay 257. 11. 11. IN view of the clear provisions of Section 6, its proviso and Explanation 1 of the Hindu Succession Act which do not admit of any ambiguity and the decisions referred to above, I am of the considered view that on the death of Vishwanath which took place on 15-9-56, the interest of Vishwanath in the coparcenary property devloved on his heirs, namely, the plaintiffs. Once the interest in the coparcenary property had devolved on his heirs under the Hindu Succession Act, Ramnath who was the Karta of the coparcenary body would not be entitled to alienate in the disputed house the share of the plaintiffs who were the heirs of Vishwanath. This position has also been considered in the above cited case reported in AIR 1975 Madras 51. 12. IN the circumstances, the plaintiffs were entitled to file the suit for partition of their share in the disputed property. Once the plaintiffs on the death of their ancestor Vishwanath on 15-9-56 became entitled to the share of Vishwanath in the disputed house there would be no occasion for the transfer of their share by Ramnath as Karta of the family in favour of respondent Mewa. Admittedly, at the time of the death of Vishwanath, that is, on 15-9-56, and the execution of the sale deed by Ramnath in favour of Mewa on 25-11-56 the two sons and three daughters of Vishwanath, who are plaintiffs along with their mother, were minors and they were governed by the Hindu Minority and Guardianship Act (No. 32 of 1956). Under Section 6 of the said Act the natural guardian of a Hindu minor in. respect of the minor's person as well as the minor's property, would be the father and in his absence the mother. Under Sec. 8 of the said Act the powers of the natural guardian are defined, and under sub-section (2) of Sec). 8 the natural guardian is prohibited without the previous permission of the court to either mortgage or charge or transfer by sale, gift, exchange or otherwise any part of the immoveable property of the minor. In the instant case no permission from the court was obtained by Ramnath to transfer the interest or share of the minor in the disputed house. In the instant case no permission from the court was obtained by Ramnath to transfer the interest or share of the minor in the disputed house. Thus the sale dead dated 25-U-56 executed by Ramnath in favour of Mewa and the sale deed executed by Mewa subsequently in favour of Banarsi Halwai, respondent no. 4, will be deemed to be ineffective in so far as the share of the plaintiffs which they inherited from Vishwanath in the disputed house is concerned. 13. FOR the reasons given above this appeal is allowed. The judgment and decree of the lower appellate court is set aside and the suit of the plaintiffs for partition of the disputed house in respect of their share is decreed with costs throughout. Appeal allowed.