Lakshmi Amma v. Rajalakshmi — 1994 DIGILAW 175 (KER)

JUDGMENT K. P. Balanarayana Marar, J. 1. Defendants 1, 2 and 4 to 8 in a suit for partition are the appellants. Respondents 1 to 4 are the plaintiffs and respondents 5 to 19 are the other defendants. 2. Plaint B schedule properties originally belonged to the parties and the tarwad of the parties and in a partition of the tarwad properties of the year 1944 these properties were allotted to Lakshmi Amma, the Ist defendant, arid her, descendants. Some of the properties were since then assigned and remaining properties are described in the plaint B schedule. Plaintiffs claimed separation of their shares. The partition deed entered into on 1-6-1974 is not binding on the plaintiffs since the partition is not fair and equitable. Plaintiffs 1 to 4 and defendants 1 to 17 are the members of the tavazhi. Defendants 18 to 22 were impleaded since they were found to be in possession of a small portion of the properties. 3. The suit was resisted by defendants 1, 2 and 4 to 8 who contended that a division of the properties had taken place as per the partition deed dt. 1-6-1974. They further contended that the partition was fair and just and that the plaintiffs' mother had represented them as their guardians Defendants 3, 10, 12, 11, 13 16, and 17 supported plaintiffs. Defendants 18 to 22 claimed to be bona fide purchasers for value from the persons to whom those properties were set apart in partition. 4. Documents were produced on both sides. The father of plaintiffs was examined as P.W. 1. Three witness were examined on the side of defendants. The court below on a consideration of the documents and appreciation of evidence held that the partition deed dt. 1-6-1974 is unfair and inequitable. That partition was permitted to be reopened as far as plaintiffs were concerned. They were found entitled to 4/21 shares. The properties covered by Exts. B1 and B2 purchased by defendants 18 to 22, were directed to be reserved to the share of defendants 8 and 2 respectively. The question of reservation and other equities and the quantum of profits were relegated to the final decree stage, Aggrieved by that decision defendants 1, 2 and 4 to 8 have come up in appeal. 5. The main grievance of the appellants is that the court below has committed an error in finding Ext. The question of reservation and other equities and the quantum of profits were relegated to the final decree stage, Aggrieved by that decision defendants 1, 2 and 4 to 8 have come up in appeal. 5. The main grievance of the appellants is that the court below has committed an error in finding Ext. A2 Partition to be unfair and inequitable and in reopening the same as far as the plaintiffs are concerned. The quantum of shares allotted to the plaintiffs is also disputed on the ground that a disruption in status had taken place in 1974 and persons born hereafter are not entitled to get any share. 6. On the contentions raised by the appellants the following points arise for consideration: 1. Whether the partition is liable to be reopened for any of the reasons mentioned in the plaint and whether the court below was right in directing division of the properties allotting shares to plaintiffs, and 2. In the event of partition, what are the correct shares to which plaintiffs are entitled. POINT NO. 1 7. One of the reasons alleged by She appellants in support of the partition deed Ext. A2 is that plaintiffs were represented by their mother as guardian and the representation was proper, according to law. The natural guardian of a Hindu minor in respect of the minor's person as well as his property excluding his/her undivided interest in joint family property is the father and after him the mother in the case of a boy or unmarried girl under S.6 of the Hindu Minority and Guardianship Act. The section is not applicable to the undivided interest of a Hindu minor in joint family property. It is also clear from the preamble that the Act is intended to amend and codify certain parts of the law relating to minority and guardianship among Hindus. The provisions of the Act are therefore made applicable only to matters relating to minority and guardianship in respect of the minor's property excluding his/her undivided interest in joint family property. That is manifested from not only from S.6, but also from S.9 and 12 of the Act. The provisions of the Act are therefore made applicable only to matters relating to minority and guardianship in respect of the minor's property excluding his/her undivided interest in joint family property. That is manifested from not only from S.6, but also from S.9 and 12 of the Act. S.9 relates to testamentary guardians arid their powers, A Hindu father entitled to act as the natural guardian of his minor legitimate children may by will appoint a guardian for any of them in respect of the minor's person or in respect of the minor's property other than the undivided interest referred to in S.12 of the Act. S.12 states that no guardian shall be appointed for the minor in respect of such undivided interest where a minor has an undivided interest in joint family property and the property is under the management of an adult member of the family. The reason why a guardian cannot be appointed by the court of the undivided interest of the minor in joint family properties is that the interest of the minor, is not separate or individual property. Such cases are therefore governed by the general principles of law relating to joint family property. 8. The parties to this litigation being Marumakkathayees in Malabar are governed by the Madras Marumakkathayam Act. S.14 of that Act contained in Chap.3 relating to maintenance and guardianship states inter alia that the father shall be the guardian of his minor children. The section contains a proviso that such guardianship shall not extend to the right and interest of the wife or children in respect of their tarwad or tavazhi properties. Identical provisions are contained in S.10 of the Travancore Nair Act. The position therefore is that in respect of tarwad or tavazhi properties, the father is not the guardian. It is contended that the karanavan who is in management of the tarwad or tavazhi properties will be the guardian of the minors also. But there is nothing in the Madras Marumakkathayam Act preventing the mother from acting as guardian in respect of the tarwad or tavazhi properties of her minor children. Plaintiffs were therefore properly represented by their mother as guardian in the partition deed Ext. A2. The document is not therefore liable to be challenged on the ground that the minors were not represented by the father as guardian. 9. Plaintiffs were therefore properly represented by their mother as guardian in the partition deed Ext. A2. The document is not therefore liable to be challenged on the ground that the minors were not represented by the father as guardian. 9. Even if the father is the legal guardian to represent the minors the mother is competent to represent plaintiffs as guardian since the father had not taken any interest in the management of the properties of the minors. As P. W. 1 he stated that he was aware of the deliberations and the partition which resulted thereby. He did not intervene in the mediation talks, nor did he speak on behalf of the minor children in order to get their legitimate share. It is therefore pointed out that the father has to be treated as nonexistent though alive. Attention is drawn to the decision of the Supreme Court in Jijabai Vithalrao Gaire v. Pathankhan ( AIR 1971 SC 315 ), The Supreme Court held that the position in the Hindu Law as well as under S.6 of the Hindu Minority and Guardianship Act is that normally when the father is alive he is the natural guardian and it is only after him that the mother becomes the natural guardian. It is further observed that where the father was alive but had fallen out with the mother of the minor daughter and was living separately for several years without taking any interest in the affairs of the minor who was in the keeping arid care of the mother, it was held that in the peculiar circumstances, the father should be treated as if non existent and therefore the mother could be considered as the natural guardian of the minor's person as well as property and had power to bind the minor by granting lease of her land in proper course of management of the property. The mother was therefore competent to represent the minors in the partition deed. 10. That leads us to the next question whether the division was fair and equitable. There were 19 members in the tavazhi at the time of partition. The common ancestress, the 1st defendant, relinquished her share in favour of others and the properties were divided among executant Nos. 2 to 19 of Ext. 10. That leads us to the next question whether the division was fair and equitable. There were 19 members in the tavazhi at the time of partition. The common ancestress, the 1st defendant, relinquished her share in favour of others and the properties were divided among executant Nos. 2 to 19 of Ext. A2 karar where under a right to take income was reserved in favour of the 1st defendant over two properties, one of which is item No. 2 of B schedule allotted to the group of plaintiffs and the other is the property allotted to executant No. 9 of the document. The specific contention of plaintiffs before the court below was that executant. Nos. 3 and 10 to 19 which include plaintiffs were not allotted their due share. This contention was attempted to be substantiated before the court below by referring to the total extent of the properties available and the properties included in the various schedules and set apart to the respective sharers as well as the rights available to executant Nos. 3 and 10 to 19 for enjoyment. On hearing counsel on both sides and on a perusal of the judgment of the court below I am of the view that the learned Subordinate Judge has considered the matter in the proper perspective and has rightly held that the partition is unjust and inequitable. 11. The total extent of the properties divided under Ext. A2 is 10.54 1/2 acres. The group consisting of executant Nos. 3 and 10 to 19 was allotted only 99 1/4 cents whereas they would be entitled to an area of 6.44 acres if divided on per capita basis. The first executant had relinquished her share and the properties were divided among executant Nos. 2 to 19. The group of plaintiffs was therefore entitled to 11 out of 18 shares it is on that basis the extent as mentioned above is calculated. The total extent of the properties allotted to the group of plaintiffs is therefore far short of their legitimate share. In this connection Sri. P. G. K. Warrier, learned counsel for appellants, draws attention to Clause.2 and 12 of the karar in support of his contention that division was made on the basis of the income from the properties and not on the basis of the extent. In this connection Sri. P. G. K. Warrier, learned counsel for appellants, draws attention to Clause.2 and 12 of the karar in support of his contention that division was made on the basis of the income from the properties and not on the basis of the extent. Clause.2 says that partition was effected through mediators after looking into the nature of the soil, whether good or bad, and on the basis of income. Clause.12 recites that the executants are satisfied with regard to the extent allotted to each sharer since the properties were divided on the basis of income. It is argued that the income from the respective properties was not ascertained and no evidence was adduced on the side of the plaintiffs regarding the income. Counsel for appellants would therefore assert that the division cannot be said to be unjust or inequitable merely on the basis of extent. This contention is unsustainable for reasons more than one. The group of plaintiffs are the major sharers, they being entitled to 11 out of 18 shares. Executant Nos. 2 and 4 to 9 are entitled only to one share each. It is seen that some of the males among the sharers are allotted extensive properties. The schedule allotted to executant No. 2 has an extent of 3.93 1/4 acres and E schedule allotted to the 6th executant has an area of 2.18 1/2 acres. The 5th executant is allotted 1.25 1/2 acres. The other sharers are seen allotted 60 cents, 66 1/4 cents, 45 cents, and 46 cents each. Majority of the properties are situated in Perut desom of Eramam amsom. The A schedule property is in vellora desom of Kuttoor amsom. All the properties are described as parambas or garden lands in the schedule to the document. It has not been shown that the extensive properties allotted to executant Nos. 2 and 6 are waste lands unfit for cultivation. On a mere look at the extent of the properties allotted to the respective sharers it is clear that the division was not made in a fair and equitable manner. 12. Even if the division was made on the basis of income from the respective properties, the group of plaintiff was denied the income for a considerably long period. On a mere look at the extent of the properties allotted to the respective sharers it is clear that the division was not made in a fair and equitable manner. 12. Even if the division was made on the basis of income from the respective properties, the group of plaintiff was denied the income for a considerably long period. Two items of properties are seen allotted to them the first item having an extent of 22 cents and the second item an extent of 75 1/4 cents. The first executant 1st defendant is given the right to take the income from item No. 2 during her life time. For the past 20 years she was appropriating the income from that property. In effect the group of plaintiffs was denied the income from that item for two decades and it is likely that they would be denied that benefit for some more years to come. In the circumstances it is meaningless to contend that the properties were divided on the basis of income. One cannot support that division so long as the allottee gets the right to take the income from the property allotted. The reservation of the income from item No. 2 of B schedule in favour of 1st defendant by itself is sufficient to hold that the partition is unfair. 13. Yet another contention raised by learned counsel for the appellants is that the joint family house, which is a substantial building, has been allotted to the group of executant Nos. 3 and 10 to 19. Allotment of a substantial building may be a solace for that group in case they get exclusive rights over the building. But what has been allotted is only 4/5 share, over the building and the remaining 1/5th share is allotted to executant No. 9 and included in the H schedule. What is more, the members of the family are also given a right of residence. The allotment of the house is therefore subject to various restraints and what is allotted is only a moiety of the share even if that be a larger one. The partition is therefore 3 liable to be reopened at the instance of plaintiffs who were minors at the time of partition. 14. The allotment of the house is therefore subject to various restraints and what is allotted is only a moiety of the share even if that be a larger one. The partition is therefore 3 liable to be reopened at the instance of plaintiffs who were minors at the time of partition. 14. The Supreme Court in Ratnam Chettiar v. S. M. Kuppuswami Chettiar ( AIR 1976 SC 1 ) held that a partition can be reopened whatever the length of time when the partition took place where the partition effected between the members of a Hindu undivided family which consists of minors is proved to be unjust and unfair and is detrimental to the interests of she minors. In Para.19 of the decision the Supreme Court has said down the propositions on a consideration of the authorities and the law on the subject thus: "(1) A partition effected between the members of the Hindu Undivided Family by their own volition and with their consent cannot be reopened, unless it is shown that the same is obtained by fraud, coercion, misrepresentation or undue influence. In such a case the Court should require a strict proof of facts because an act inter vivos cannot be lightly set aside. (2) When the partition is effected between the members of the Hindu Undivided Family which consists of minor coparceners it is binding on the minors also if it is done in good faith and in bona fide manner keeping into account the interests of the minors. (3) Where, however, a partition effected between the members, of the Hindu Undivided Family which consists of minors is proved to be unjust and unfair and is detrimental to the interests of the minors, the partition can certainly be reopened whatever the length of time when the partition took place. In such a case it is the duty of the Court to protect and safeguard the interests of the minors and the onus of proof that the partition was just and fair is on the party supporting the partition. In such a case it is the duty of the Court to protect and safeguard the interests of the minors and the onus of proof that the partition was just and fair is on the party supporting the partition. (4) Where there is a partition of immovable and movable properties but the two transactions are distinct and separable or have taken place at different times, if it is found that only one of these transactions is unjust and unfair, it is open to the Court to maintain the transaction which is just and fair and to reopen the partition that is unjust and unfair". 15. In the light of the aforementioned propositions laid down by the Supreme Court, the conclusion is irresistible that Ext. A2 partition is unfair and unjust and is detrimental to the interests of the plaintiffs who were minors at the time of partition. The court below was therefore right in reopening the partition and in directing division of the plaint schedule properties and for allotment of four shares to plaintiffs. POINT NO. 2. 16. The court below has directed division of the properties into 21 shares. On the date of the suit there were 21 members in the tavazhi. They are plaintiffs and defendants 1 to 17. There are only 19 members on the date of Ext. A2 as seen from that document. It is therefore pointed out by learned counsel for the appellants that the properties are to be divided into 19 shares, the children born after Ext. A2 being not entitled to any share. A division in status had already taken place by the Partition deed of 1974. Persons born thereafter are not entitled to gel any share. Defendants 16 and 17 cannot claim a share over the properties. The result is that the properties are to be divided among plaintiffs and defendants 1 to 15. Plaintiffs are therefore entitled to 4 out of 19 shares. The direction that the properties covered by Exts. B1 and B2 shall be reserved to the share of defendants 8 and 2 respectively shall stand since that is not disputed by any of the parties. The directions regarding profits, reservation and equity will also stand. For the aforesaid reasons the judgment and decree of the court below are confirmed and the appeal is dismissed subject to the modification regarding shares. The directions regarding profits, reservation and equity will also stand. For the aforesaid reasons the judgment and decree of the court below are confirmed and the appeal is dismissed subject to the modification regarding shares. The parties are directed to suffer their respective costs.