Lekshmi v. Velukutty — 1980 DIGILAW 302 (KER)

JUDGMENT P. Janaki Amma, J. 1. The Judgment of the Court was delivered by Janaki Amma, J. - The appellants are the plaintiffs in a suit for partition. They are the sisters of Dr. Damodaran who died on 12th January 1960. The properties of which partition was sought are stated to have belonged to Dr. Damodaran. The first defendant (now deceased) was the widow of Dr. Damodaran. Defendants 2 and 3 are his brothers. Defendants 4 to 13 and 14 to 17 are respectively the legal representatives of Nanu Panicker and Madhavan, deceased brothers of Dr. Damodaran. Plaint A schedule consists of five items. Item 1 stood in the name of the first defendant. She was in possession of the item and was residing in the building situated therein. Items 2 to4 were acquired by deceased Dr. Damodaran. Item No. 5 was obtained by him in a partition of his family assets. The B schedule to the plaint contained the movable properties stated to have belonged to Dr. Damodaran and the C schedule the outstandings in cash owned by him. The plaint proceeded on the footing that Dr. Damodaran married the first defendant under the Special Marriage Act, and therefore, succession is regulated by the provisions of the Indian Succession Act. One half of the assets devolved on the widow of the deceased and the other half on the brothers and sisters. The plaintiffs claimed that each of them was entitled to 1/9 of one half of the assets of deceased Dr. Damodaran. 2. After the death of Dr. Damodaran, a suit, O.S. No. 16 of 1961 was filed by deceased Nanu Panicker before the Sub Court, Attingal, for partition of the assets of the deceased. The suit was, subsequently, transferred to the District Court, Trivandrum, and renumbered as O.S. No. 9 of 1965. In August, 1967, during the pendency of the suit, the brothers and sisters of Dr. Damodaran entered into an agreement, under which each of them came into possession of different portions of items 2 to 5, 40 cents including the building in item No. 2 being kept in common. Though the suit was dismissed for default, the arrangement, according to the plaintiffs, continued thereafter also. Damodaran entered into an agreement, under which each of them came into possession of different portions of items 2 to 5, 40 cents including the building in item No. 2 being kept in common. Though the suit was dismissed for default, the arrangement, according to the plaintiffs, continued thereafter also. Subsequently, the first defendant as plaintiff instituted O.S. No. 12 of 1967 before the Sub Court, Attingal, for a declaration of her right in respect of items 2 to 5 as the sole heir entitled to the assets of Dr. Damodaran, to the exclusion of his brothers and sisters. Pending the suit, on 14th May, 1970, the second defendant obtained a sale deed (marked in the present case as Ext. 6-1) in respect of her rights in items 2 to 5. The second defendant got himself transposed as the second plaintiff and continued the suit. The suit was decreed by the Trial Court. The decision of the Trial Court was reversed by this Court, in A.S. No. 594 of 1970, the judgment of which is marked as Ext. A-4 in the present suit. It was held that succession was regulated by the Indian Succession Act, that the widow was entitled to a half share, and that the other half share devolved on the brothers and sisters of the deceased. During the pendency of the litigation the second defendant attempted to trespass into the items in the possession of his brothers and sisters. The 18th defendant was, therefore, appointed receiver of the items, other than the building in item No. 2. 3. As already stated, in the suit from out of which the present appeal arises the plaintiffs proceeded on the footing that succession to the estate of deceased Dr. Damodaran was governed by the Indian Succession Act. The five plaintiffs claimed that each of the brothers and sisters of Dr. Damodaran was entitled to 1/18 share in his assets. The first defendant, his widow, was entitled to a half share. 4. The first defendant died pending suit. Additional defendants 19 to 22, who are her personal heirs and the 23rd defendant were impleaded to represent her estate. 5. The second defendant was the main contesting party. He contended that the suit was barred by limitation, that the first defendant was the sole heir of Dr. 4. The first defendant died pending suit. Additional defendants 19 to 22, who are her personal heirs and the 23rd defendant were impleaded to represent her estate. 5. The second defendant was the main contesting party. He contended that the suit was barred by limitation, that the first defendant was the sole heir of Dr. Damodaran, that she inherited the plaint schedule items 2 to 5, and, thereafter, transferred the items to him, and as such, he became solely entitled to those items. He claimed that those items were in his possession ever since the death of Dr. Damodaran, that the suit was barred by adverse possession and limitation, and that in case of partition he was entitled to get Rs. 22,040 being the value of improvements effected by him. Defendants 4, 6 to 9, 11 to 13 and 14 to 17 supported the plaintiffs and claimed shares on that basis. Other defendants were ex parte. 6. The Trial Court passed a preliminary decree for partition, but held, that item No. 1 belonged to the first defendant exclusively as it was purchased with her funds. The plea based on adverse possession and limitation was found against. Among the B schedule movables, existence of items 1 and 13 alone was held to have been established. Partition was allowed fixing the value of those items at Rs. 3,200. The C schedule items being outstandings worth Rs. 51,980.18, were held to be divisible. One half of the assets was held to be due to the first defendant and the balance one half was directed to be divided among the brothers and sisters of Dr. Damodaran, each of them getting 1/9 share in chat half share. Each of the brothers and sisters were also held to be entitled to Rs. 238.80 towards the value of items 1 and 13 in the B schedule and Rs. 2,887.70 as their share in the outstandings in the G schedule. The share due to the deceased first defendant in items 2 to 5 was allotted to the second defendant in view of the assignment in his favour. Defendants 2, 3, 4 to 13, 14 to 17 and the plaintiffs were held entitled to recover their shares in the partible items in the B schedule and in the C schedule items from the assets of the first defendant in the hands of defendants 19 to 22. Defendants 2, 3, 4 to 13, 14 to 17 and the plaintiffs were held entitled to recover their shares in the partible items in the B schedule and in the C schedule items from the assets of the first defendant in the hands of defendants 19 to 22. The second defendant's claim for value of improvements, except in the building in item No. 2, was disallowed. His claim for value of improvements in respect of the building was relegated to the final decree proceedings. 7. The plaintiffs and the second defendant were not satisfied by the decree. The main appeal is filed by the plaintiffs. The second defendant has filed a cross appeal challenging the findings in relation to limitation and adverse possession and value of improvements. 8. The appeal by the plaintiffs concerns with the right of the appellants to a charge for their shares in the partible assets in the B and C schedules, on the properties which the second defendant got by way of assignment from the deceased first defendant. The claim is that the amounts which have been decreed in their favour are in the nature of owelty and had the first defendant been alive and had not assigned her share a charge would have been available for the said amount on the share of the properties allotted to her. The argument is that the second defendant is not entitled to any higher right than what his assignor the first defendant would have got, and therefore, a charge should have been decreed for the amounts on the share of the first defendant in items 2 to 5 now allotted to the second defendant. 9. The contention that the second defendant is entitled only to such rights that his assignor the deceased first defendant was entitled to is well founded on authorities. In Ayyagari Venkataramayya v. Ayyagari Ramayya (ILR 25 Madras 688 (F.B.)), a member of a joint Hindu family sold a moiety consisting of 2 acres 26 cents of land out of his plots measuring 4 acres 52 cents belonging to himself and his two nephews in equal shares, to the plaintiff. After the death of the assignor the plaintiff instituted a suit for partition. After the death of the assignor the plaintiff instituted a suit for partition. The law was expounded by Bhashyam Ayyangar, J., as follows: "When the transfer is of an undivided interest in the whole of the family property, the transferee will get whatever may be allotted to the transferor's share in a suit for partition. But if the transfer relates to any specified portion of the family property, there is the risk that it may turn out that in a partition of the whole property it is impracticable or inequitable to allocate either the whole or a part of such specified portion to the share of the transferor.................................. The claim of a transferee from a coparcener to work out the transfer is no doubt an equitable claim in the sense that he must be a transferee for value and in cases where the transfer relates to a specific portion of the family property, he has no legal right, any more than his transferor himself, to insist on that specific portion being allotted to the share of the vendor." 10. Another Full Bench of the Madras High Court had occasion to consider the extent of the rights of the purchaser of an undivided share of a coparcener in Venku Reddi v. Venku Reddi (AIR 1927 Madras 471). The following is the relevant portion in the judgment: "The purchaser of an undivided share of a Hindu coparcenor, it has been held, gets only an equity to enforce partition and takes the share when partitioned subject to all the liabilities on it in the hands of his vendor. Clearly therefore the fifth and sixth defendants can get the second defendant's share only subject to the liability for the debt, if it is subject to that liability in second defendant's hands." There is no doubt that the principle is applicable in the case of coowners also. See the following passage in Freeman on Cotenancy and Partition (Second Edition) Page 270: "The interest of one cotenant cannot be diminished, varied, or otherwise prejudiced or affected by a conveyance made by another cotenant, except in the case of a joint tenancy or coparcenary, in which the only effect upon the tenant not joining in the deed is to transform a joint estate into a tenancy in common. Whatever the deed may profess to dispose of, the grantee, as between himself and the other cotenants, can obtain no greater interest than his grantor had the right to enjoy." 11. See Corpus Juris Secundum, Volume 68, Page 383: "A purchaser of a cotenant's undivided interest buys subject to whatever allotment may be made in the event of a possible partition of the reality," The principle has been applied in the case of partition among coowners in India also. See also Poovanalingam Servai v. Veerayi (AIR 1926 Madras 186). 12. The second defendant in this case is, therefore not entitled to any higher right than what his assignor the first defendant had in respect of items 2 to 5. The further question is whether the amount that the first defendant was to account to the other sharers is owelty and as such a charge on the share due to the first defendant. Owelty is described by Freeman in the following words: "When an equal partition cannot be otherwise made, courts of equity may order that a certain sum be paid by the party to whom the most valuable property has been assigned. The sum thus directed to be paid to make the partition equal is called owelty. It is a lien on the property on account of which it was granted. 'The law cannot contemplate the injustice of taking property from one person and giving it to another without an equivalent, or a sufficient security for it.' The lien for owelty has precedence over prior mortgages and other liens existing against the cotenant against whom the owelty was awarded........... It does not constitute a charge against the person of the cotenant, nor can it be enforced out of any property other than that assigned to him in the partition proceedings." (See cotenancy and partition, 2nd Edn., page 676). 13. The American Jurisprudence, 2nd Edition, Vol. 59, deals with the subject as follows: "The rule appears to be well established that in order to make as equitable partition of property it is competent for a court of equity, or a court so empowered by statute, to require one party who has been allotted a share of greater value than was allotted to another to pay a sum of money to such other, and thus equalise the shares of the respective parties. * * * * The owelty awarded must be paid or secured before partition is ordered, but where one is unable to make the payment at the time of division, it should be a lien or charge on his share, and a reasonable time should be given for the payment. Where the part of the estate owned by him to whom owelty is due is mortgaged, the owelty should be paid to the mortgagee unless he waives it. A lien for owelty of partition partakes of the nature of a vendor's lien. The lien follows the more valuable share into the hands of all subsequent holders, all persons are held to have constructive notice of it, and being in the claim of title, it need not be docketed as a judgment lien. * * * " 14. 68 Corpus Juris Secundum deals with owelty at page 232: "The law will not contemplate the injustice of taking property from one person and giving it to another without an equivalent or sufficient security for it, and, therefore, where the property to be partitioned is of such a character that it cannot be divided equally without impairing the value of all the portions, and a sale would like wise be disadvantageous, the court may divide the property into shares of unequal value and correct the inequality by requiring an amount to be paid or secured by the cotenants receiving allotments in excess of their shares to those receiving less. The amount thus awarded is termed 'owelty', and the right thereto is said to be based on the implied warranty attaching to each share from all the others." Ballintine's Law Dictionary (1948 Edn.) deals with the subject a.p. 923 as follows: "Owelty as partition - A sum paid or secured, in the case of partition, by him who has received the larger portion to him who has the less, for the purpose of equalising the portions; it is pecuniary compensation decreed by the court in actual partition to adjust an inequality of the shares not justified by the interests of the parties in the estate. The application of the term is confirmed to the partition of lands." Lawrence on Equity jurisprudence, Stoy on 'Equity' and Black's Law Dictionary deal with owelty in almost similar terms. The application of the term is confirmed to the partition of lands." Lawrence on Equity jurisprudence, Stoy on 'Equity' and Black's Law Dictionary deal with owelty in almost similar terms. The significant thing noted is that all the above treatises proceed on the footing that owelty has application only in the partition of real property. This is particularly made out from the extract in Ballintine's Law Dictionary. 15. So far as India is concerned there does not appear to be any statute which makes specific mention of owelty. But owelty has been recognised in effecting partition. In Shahebsada Ahammed Kasim Shah v. R. S. Hill (ILR 35 Cal. 388) owelty amount has been recognised as a charge upon the property. In Poovanalingam Servai v. Veerayi (AIR 1926 Madras 186) Philips, J., observed, that even if no charge exists in law, one can be enforced on equitable principles. In Jyoti Bhushan v. Shiva Prasad ( AIR 1943 PC 205 ) "owelty" was declared to be a debt for the purpose of the U.P. Encumbered Estates Act, differing from the view of the High Court of Allahabad that the amount represented a part of the share of the concerned person in joint family property. 16. The Supreme Court had occasion to consider the incidents of owelty in T. S. Swaminatha v. Official Receiver ( AIR 1957 SC 577 ). After a review of the English and American authorities on the subject, the Supreme Court observed: "It therefore follows that when an owelty is awarded to a member on partition for equalisation of the shares on an excessive allotment of immovable properties to another member of the joint family, such a provision of owelty ordinarily creates a lien or a charge on the land taken under the partition. Alien or a charge may be created in express terms by the provisions of the partition decree itself. There would thus be the creation of a legal charge in favour of the member to whom such owelty is awarded. If, however, no such charge is created in express terms; even so the lien may exist because it is implied by the very terms of the partition in the absence of an express provision in that behalf." 17. There would thus be the creation of a legal charge in favour of the member to whom such owelty is awarded. If, however, no such charge is created in express terms; even so the lien may exist because it is implied by the very terms of the partition in the absence of an express provision in that behalf." 17. A Full Bench of this Court held, in Parvathi Amma v. Makki Amma ( 1961 KLT 937 (FB)) that an owelty in a partition decree relating to immovable property was not a debt within the purview of the Kerala Agriculturists Debt Relief Act, 31 of 1958 as it is a liability for which a charge is provided in S.55(4)(b) of the Transfer of Property Act. In the same decision the Full Bench considered whether the amount which a sharer was directed to pay his cosharers towards their shares in the value of an elephant was a debt, under Act 31 of 1958. The Full Bench by a majority held that it was, even though a charge was provided for the amount on the properties allotted to the sharer, who purchased the elephant in auction sale. 18. For the purpose of this case it may not be necessary to go into the merits of the decision in Parvathi Amma v. Makki Amma ( 1961 KLT 937 (FB)). The reference to the above decision is only to show that for a charge being provided for a certain amount in a partition decree it is not necessary that it should represent value of immovable property. Partition. suits in India are mostly actions for division of assets owned by family members, who are either coowners or joint owners of the properties. The assets to be divided include not only immovable properties, but also outstandings and movables. Even though immovable properties are valued for the purpose of division, for the purpose of final allotment an account will be taken of all the assets and liabilities and if on taking such accounts amounts are due to any sharer from another, such amounts are made a charge in the properties allotted to the latter. In other words, so far as our country is concerned, for a charge to be available, on the share allotted to a member it is not indispensable that the amount should represent value of immovable property. 19. In other words, so far as our country is concerned, for a charge to be available, on the share allotted to a member it is not indispensable that the amount should represent value of immovable property. 19. Owelty as is well known is based on equity. Ramachandra Mitra in his Tagore Law Lectures on the Law of Joint Property and Partition in British India stated: "Our courts in this country are Courts of Law and Equity. They may, therefore, in a suit for partition be called upon to adjust all the equities existing between the parties and arising out of their relation to the property to be divided. But the equities are so vast and complicated in their nature that an exhaustive consideration of them is impossible................ " 20. In a suit for partition between A and B involving properties, movable and immovable and outstandings, to facilitate division it may be necessary to allot properties and outstandings of unequal value to the two sharers. A may have to give a certain sum to B for equalisation of the value of immovable property; B may have to give a larger sum to A towards the share of movables and outstandings. In such cases it is inequitable to hold that B will have a charge on the immovable properties allotted to A for the sum due to him and that B will not have such a charge. The proper thing in such cases is to set off the amounts against each other and decide the ultimate liability and give a charge for that amount on the share of the person who is to pay. True, the liability in such cases though loosely called owelty is not really so if that word is to be understood in the sense described in the English and American Treatises, as something attached to partition of real property. 21. In Rajah of Vizianagram v. Rajah Sethucherla Somasekhararaz (ILR 26 Madras 686 (FB)) the question arose whether a tenant who paid public revenue on certain land was entitled to a charge for that amount against his coowner. The court observed: "But when once the right of contribution is established, as in the present case, it certainly cannot be inequitable or violent stretch of such right to make it a charge against the coowner's share.............. " 22. The court observed: "But when once the right of contribution is established, as in the present case, it certainly cannot be inequitable or violent stretch of such right to make it a charge against the coowner's share.............. " 22. In Poovanalingam Servai v. Beerayi (AIR 1926 Madras 186), a property was purchased by defendants 1 and 2 the first defendant paying Rs. 340 and the second defendant Rs. 60. The excess money paid by the first defendant was on behalf of the second defendant. The first defendant redeemed a usufructuary mortgage on the land and paid the whole of the mortgage money and got possession of the property. The plaintiff purchased the share of the second defendant and sued for redemption of his share of the usufructuary mortgage and for partition. In the decree that was passed the plaintiff was directed to pay Rs. 140 before recovery of possession of his half share. In second appeal Philips, J., observed: "Even if there is no legal charge in the present case, yet on equitable principles such a charge can be enforced and when it comes to partitioning the property between two cotenants, this equity should in my opinion be enforced." The above passage has been quoted with approval in T. S. Swaminatha v. Official Receiver ( AIR 1957 SC 577 ). 23. In the instant case, for allotting shares to the different heirs the whole of the assets of the deceased has to be taken into account and since the first defendant has already appropriated the whole of the partible items in B and C schedules, the value of her share in the remaining assets of the deceased would get diminished to the extent of the amount which she would have been called upon to account for the half share in the partible items in the B and C schedules which the other heirs are entitled to. In other words, the first defendant if alive would have been made accountable for the half share in both the B schedule items 1 and 13 and the outstandings in the C schedule and she would have been entitled to get her half share in the A schedule only subject to the liability to account for the half share in B schedule items 1 and 13 and the C schedule outstandings. In the words of the supreme Court even if no express charge was created in such cases there is in equity a lien or a charge created on the properties falling to the share of the first defendant for the amount she was to account by way of the half share in the B schedule items 1 and 13 and C schedule outstandings. The second defendant who got by transfer the share of the first defendant in items 2 to 5 in the A schedule took the items subject to the charge. 24. It was argued on behalf of the respondents that the contention now raised was never raised before the Trial Court and the parties were not in issue on the point. This does not appear to be correct. The plaintiffs disputed the binding nature of the assignment in favour of the second defendant and also contended that whatever amount out of the assets of Dr. Damodaran had been appropriated by the first defendant should be set off against her share. Issues 6 and 9 are wide enough to include the above points. Whether the plaintiffs are entitled to a charge is a question of law and therefore if the Trial Court omitted to give adequate relief to the plaintiffs by way of equity, the appellate court is competent to deal with it. 25. Another objection raised is that the plaintiffs are precluded from agitating the issue since the rights of parties have been crystallised by Ext. A4 Judgment of this Court. This contention is also bereft of any force because Ext. A4 Judgment only declared that the first defendant has only a half share in the assets of Dr. Damodaran. In the concluding portion of the judgment this Court considered whether suit filed by the first defendant could be converted into one for partition. It was however noticed that the first defendant had collected several items of assets left by Dr. Damodaran and without including them the suit could not be converted into one for partition, In the light of the above, Ext. A4 does not debar the plaintiffs from putting forward their claims based on equity. 26. What remains is only the cross appeal filed by the second defendant. The first ground taken in the cross appeal relates to the bar of adverse possession and limitation. There is no merit in the contention. Dr. A4 does not debar the plaintiffs from putting forward their claims based on equity. 26. What remains is only the cross appeal filed by the second defendant. The first ground taken in the cross appeal relates to the bar of adverse possession and limitation. There is no merit in the contention. Dr. Damodaran died on 12th January, 1960. The suit was filed in January, 1973. The second defendant cried to prove his exclusive possession by examining DWs 2 to 4. The Trial Court rightly rejected their evidence. The parties were cosharers and as such there could be no adverse possession in the absence of proof of ouster. Ext. A8 and Ext. A6 belie the case of ouster. It has also come out that 18th defendant was in possession of items 2 to 4 as receiver. The possession of the receiver could only be on behalf of the true owners. Hence the Trial Court rightly rejected the plea of adverse possession and limitation. 27. The next item in dispute is regarding the value of improvements. The second defendant contended that he has effected improvements in items 2 to 4 which included certain additions to the building in item No. 2. The court held that there was no evidence to show that the second defendant has effected improvements and that even if he has effected any improvements he is not entitled to the value thereof. The plaintiffs however agreed that in case any additions and amenities have been provided to the building in the second item, they could be determined in the final decree proceedings and the value thereof could be paid. A direction to that effect has been made in the preliminary decree. Therefore what is in dispute is only the right of the second defendant to get value of the remaining improvements if any in items 2 to 4. The second defendant has not made out that he has effected any improvements. The Trial Court held that the decision in Kassinkunju v. Velayudhan Pillai ( 1972 KLT 861 ), governed the matter. In the absence of definite material to the effect that the second defendant has effected improvements, no interference is called for. 28. In the result the appeal will stand allowed. The Trial Court held that the decision in Kassinkunju v. Velayudhan Pillai ( 1972 KLT 861 ), governed the matter. In the absence of definite material to the effect that the second defendant has effected improvements, no interference is called for. 28. In the result the appeal will stand allowed. The half share that the second defendant obtained in items 2 to5by way of assignment from the first defendant will be subject to a charge for the amounts that the first defendant had to account to the other sharers in respect of the value of the assets held to be partible in the B and C schedules to the plaint. The preliminary decree will stand modified to the above extent. The cross appeal will stand dismissed. The parties will bear their costs in the appeal and the cross appeal.