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2000 DIGILAW 1273 (MAD)

Subramani Mudaliar v. Minor Lakshmi and others

2000-12-12

A.RAMAMURTHI

body2000
JUDGMENT: The unsuccessful second defendant in O.S.No.126 of 1993 on the file of the Subordinate Judge, Thiruvannamalai, has preferred the second appeal aggrieved against the judgment and decree passed in A.S.No.91 of 1998 on the file of the Principal District Judge, Thiruvannamalai, dated 21.7.1999, reversing the judgment and decree of the trial Court dated 27.3.1998. 2. The case in brief is as follows: The plaintiffs filed a suit for partition and separate possession of their shares in Items 1 and 2 of the suit properties. These properties originally belonged to Kuppusamy Mudaliar, father of D-1 and D-2. After the death of Kuppusamy Mudaliar D-1 and D-2 as well as Unnamalai Ammal were the legal heirs. There was a partition in the family and the suit properties fell to the share of D-1 and he was in possession and enjoyment of the same. There was no debt at the time of partition. The plaintiffs 1 to 3 are the daughters of D-1 and the fourth plaintiff is his wife. The marriage of the third plaintiff was performed in the year 1990 and as such, under the provisions of the Tamil Nadu Amendment to Hindu Succession Act, she will also be entitled to a share in the schedule proeprty. D-1 drove out the plaintiffs from the house and he is colluding with his brother D-2. No provision has been made for the maintenance of the plaintiffs 1 and 2 as well as his wife. D-1 had alienated item 1 of the suit property to D-2 without any valid necessity and binding reason. D-2 had taken wantonly a sale deed from D-1 and he had no right whatsoever to alienate the shares of the plaintiffs. The plaintiffs are entitled to 3/4th share in the properties. Item 2 of the property also must be deemed to be in joint possession and they are entitled to 4/5th share in the properties. The plaintiffs issued a notice to the defendants and the second defendant alone, having received the same, sent a reply on 3.2.1993 containing false averments. There are no religious or charitable endowments to be maintained from and out of the suit properties. The fourth plaintiff is also entitled to maintenance right and she will file a separate suit for the same. Hence, the suit. 3. The second defendant filed a written statement and admitted the relationship of the parties. There are no religious or charitable endowments to be maintained from and out of the suit properties. The fourth plaintiff is also entitled to maintenance right and she will file a separate suit for the same. Hence, the suit. 3. The second defendant filed a written statement and admitted the relationship of the parties. he denied that D-1 drove the plaintiffs out of the house. Item 1 of the property has been sold by D-1 in favour of D-2 only for performing the marriage of the third plaintiff. No child by name Sadagopan was born to D-1 and the fourth plaintiff in 1976 and died on 13th Karthigai, 1976. Hence, the claim of the fourth plaintiff for a share in the suit property is not maintainable. Item 1 had been conveyed only for family necessities and for a valid consideration of Rs.20,000. D-1 had alienated the property as the manager and head of the family. Item 2 of the property is a house wherein the plaintiffs and D-1 were living in one portion and a small portion was let out to a third party on a monthly rent of Rs.50. D-1 finding it difficult to maintain the family with his meager income, to celebrate the marriage of his daughter, had sold item 1 of the property. The plaintiffs, therefore, are not entitled to any share in these properties. 4. D-2 also filed an additional written statement stating that he had purchased a portion in item 2 measuring 74 ft. east-west and 6 ft. north-south from D-1 under a registered sale deed dated 15.3.1993 for Rs.5,000. This property was also sold by D-1 for family necessities and business. This portion had to be allotted to the share of the first defendant and then to the share of D-2 under equity. D-1 has been living with his wife and it is D-1 who had instigated the plaintiffs to file the present suit. 5. This property was also sold by D-1 for family necessities and business. This portion had to be allotted to the share of the first defendant and then to the share of D-2 under equity. D-1 has been living with his wife and it is D-1 who had instigated the plaintiffs to file the present suit. 5. The trial Court, on the basis of the evidence and the documents, dismissed the suit in respect of item No.1 and granted a decree in respect of item No.2 for 4/10th share to the plaintiffs and aggrieved against this, the plaintiffs preferred A.S.No.91 of 1998 on the file of the District Court, Thiruvannamalai and the appeal was allowed and the judgment and decree of the lower Court was set aside and a preliminary decree was passed in respect of Items 1 and 2 for 4/5th share in favour of the plaintiffs. Aggrieved against this, the second respondent has come forward with the present second appeal. 6. The second defendant/ appellant has raised the following substantial questions of law: (i) Whether the judgment and decree under appeal is liable to be set aside as being opposed to the settled principle that the alienation by the Kartha of the joint family is presumed to be valid and for just necessity unless it is tainted with immorality? (ii) Whether the judgment and decree under appeal is liable to be set aside on the ground of erroneously casting the burden of proof on the shoulder of the purchaser? (iii) Whether the Court below is right in allotting the share and in holding that a deceased son who was not in existence on the date of partition is also entitled for share in the joint family property and such share will be allotted to his mother? (iv) Whether the judgment and decree under appeal constitute error of law as the findings are based on no evidence and on surmises and conjunctures? 7. Heard the learned counsel for the parties. 8.Points: The plaintiffs filed a suit for partition and separate possession of their share in Items 1 and 2 of the properties. It is admitted that these properties are ancestral properties. The plaintiffs 1 to 3 are the children of D-1 and the fourth plaintiff. 7. Heard the learned counsel for the parties. 8.Points: The plaintiffs filed a suit for partition and separate possession of their share in Items 1 and 2 of the properties. It is admitted that these properties are ancestral properties. The plaintiffs 1 to 3 are the children of D-1 and the fourth plaintiff. It is also not in dispute that D-1 and D-2 are brothers and in the family partition, the suit properties fell to the share of D-1. Item No.1 of the property has been conveyed by D-1 in favour of D-2 for a consideration of Rs.20,000 under Ex.B-1. 9. The learned counsel for the plaintiffs contended that the sale is not for family necessity and binding purposes; subsequently, one portion of item No.2 of the property was also conveyed by D-1 in favour of D-2 under Ex.B-2 and this sale is also questioned by the plaintiffs. 10. The learned counsel for D-2/ appellant contended that the suit as prayed by the plaintiffs is not maintainable under law without seeking the relief to set aside the sale in favour of D-2; the lower appellate Court also barred in holding that the deceased, five months old son, who was no more on the date of partition, also was entitled to a share and each plaintiff and D-1 are entitled to 1/5th share; the property was sold for the purpose of performing the marriage of the third plaintiff and therefore, it can be concluded that the sale is for family necessity and hence, valid and binding on the plaintiffs. D-1, being the Kartha and head of the family, is entitled to sell the property and in the absence of any allegation in the plaint that the debt was incurred for illegal and immoral purposes, it is binding on the plaintiffs and that there is no evidence to come to the conclusion that Ex.B-1 was executed to defraud the other legal heirs of D-1. 11. It is admitted that the suit properties fell to the share of D-1. Now, D-1 had conveyed item 1 of the property in favour of D-2. It has to be found out whether the sale of item No.1 is for family necessity and binding purposes. The plaintiffs categorically stated that they were driven out of the house of D-1 and nothing has been provided to them for maintenance. Now, D-1 had conveyed item 1 of the property in favour of D-2. It has to be found out whether the sale of item No.1 is for family necessity and binding purposes. The plaintiffs categorically stated that they were driven out of the house of D-1 and nothing has been provided to them for maintenance. They further stated that the marriage of the third plaintiff was not performed by D-1 and he did not attend the marriage also. The marriage invitation has been marked as Ex.A-2 in the case thereby showing that the marriage was not performed by the first defendant. No doubt, the Voters’ List has been pressed into service by D-2 in order to show that D-1 had been living with the plaintiffs under one roof. However, it is pertinent to state that although, at one point of time, D-1 and D-2 engaged one counsel and filed a written statement, subsequently, D-1 remained ex parte for the reasons best known to him. It therefore, follows that D-1 and D-2 are acting together and the present version of D-2 that now D-1 had set up the plaintiffs to file the suit is without any basis. 12. The learned counsel for the appellant contended that D-1 was the kartha and head of the family and as such, it can be presumed under law that the sale was effected for family necessity and binding purposes. There is nothing in the document to show that the sale was effected for and on beheld of the plaintiffs 1 to 3 also. In short, the plaintiffs 1 to 3 are not eo nominee parties in the sale deed. No doubt, there is no averment in the plaint that the property was sold for illegal and immoral purposes. At the same time, the burden is upon the appellant to show that the property was sold for performing the marriage of the third plaintiff. It has come out in the evidence that the marriage of the third plaintiff was performed in the year 1990 and only after a period of 4 1/2 months, item 1 of the property has been sold by D-1 in favour of D-2. The appellant attempted to explain that only after selling the property, D-1 made arrangement for the marriage of the third plaintiff. The appellant attempted to explain that only after selling the property, D-1 made arrangement for the marriage of the third plaintiff. When once it is proved that the first defendant has not attended the marriage, it can easily be concluded that D-1 was not responsible in arranging the marriage of the third plaintiff and the allegation that the property was sold to perform the marriage of the third plaintiff could not be true. The finding given by the lower appellate Court in this regard is proper and correct. 13. The learned counsel for the appellant next contended that D.Ws.1 to 5 have been examined to prove that D-1 is living along with the plaintiffs and the alienation was also made for family necessity. When there is clear evidence on the side of the plaintiff to show that D-1 is living far away from the plaintiffs and he had not performed the marriage of the third plaintiff, there is no difficulty in coming to the conclusion that the properties were not sold for family necessity and binding purposes. The oral evidence adduced on the side of the defendants cannot be given much credence. Apart from that, another portion of item 2 of the property has also been conveyed by D-1 in favour of D-2 in the year 1993. Now, D-2 attempted to state that this property was sold only for meeting family expenses. However, D-1 has not been examined in the case by D-2. When once D-1 and D-2 joined together, engaged the same counsel and filed a written statement, D-2 could have examined D-1 to probablise his case. Considering the fact that another portion of the proeprty in item 2 was also conveyed by D-1, it clearly clinches the issue that D-1 and D-2 acting in collusion want to deprive the legitimate share of the plaintiffs in the suit properties. 14. The plaintiffs contended that one son was born namely Sadagopan in the year 1976 and the male child died after some months. Under the circumstances, the fourth plaintiff, being the mother of the said child, is entitled to a share in the property in view of the Explanation 1 to Sec.6 of the Hindu Succession Act. 14. The plaintiffs contended that one son was born namely Sadagopan in the year 1976 and the male child died after some months. Under the circumstances, the fourth plaintiff, being the mother of the said child, is entitled to a share in the property in view of the Explanation 1 to Sec.6 of the Hindu Succession Act. Furthermore, the marriage of the third plaintiff also took place only in the year 1990 i.e., after coming into force of the amendment under Sec.29-A of the Hindu Succession Act as such, the third plaintiff also is one of the legal heirs entitled to succeed to the properties. For better appreciation Sec.6 and Explanation 1 to Sec.6 are extracted as follows: Sec.6: Devolution of interest in coparcenary property: When a male Hindu dies after the commencement of this Act, having at the time of his health 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 the 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 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, irrespective of whether he was entitled to claim partition or not". 15. It is clear from the language employed under Sec.6 that if the deceased had left him surviving a female relative specified in class 1 of the schedule, the interest of the deceased in the properties shall devolve by testamentary or intestate succession. As per Explanation 1, 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, irrespective of whether he was entitled to claim partition or not. As per Explanation 1, 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, irrespective of whether he was entitled to claim partition or not. There is clinching evidence and admission on the part of D-2 to show that a son was born to D-1 and the fourth plaintiff in the year 1976. Under the circumstance, I am of the view that Sec.6 of the Hindu Succession Act applies to the case on hand and the fourth plaintiff being one of the class 1 heirs is entitled to succeed to the share of her son. I am unable to agree with the contention of the learned counsel for the appellant that Sec.6 is not applicable to the case on hand. 16. The learned counsel for the plaintiffs relied on Sankaranarayana Pillai v. Kandasamia Pillai, A.I.R. 1956 Mad. 670, wherein it is observed that if minors are made eo nominee a party to alienation by his mother and guardian, he has to pray for cancellation of it and pay Court fee and he cannot pray for mere possession under Sec.7. The learned counsel for the appellant contended that a simple suit for partition and possession is not maintainable under law unless the plaintiffs seek to set aside the sale effected by D-1. As adverted to only when the plaintiffs are eo nominee parties to the transaction, then it is just and necessary to seek prayer to set aside the sale. Considering the fact that the plaintiffs are not eo nominee parties I am of the view that it is not necessary to file a suit to set aside the sale. 17. Reliance is also placed upon Veerasekhara v. Amirthavalliammal, A.I.R. 1975 Mad. 51, wherein it has been observed that “the effect of Explanation 1 to Sec.6 is to carve out the interest of a co-parcener dying after the Act, from the joint family property, and from the moment of the death of the coparcener concerned, his interest ceases to be co-parcenery property and therefore, outside the powers and jurisdiction of the Kartha. 51, wherein it has been observed that “the effect of Explanation 1 to Sec.6 is to carve out the interest of a co-parcener dying after the Act, from the joint family property, and from the moment of the death of the coparcener concerned, his interest ceases to be co-parcenery property and therefore, outside the powers and jurisdiction of the Kartha. The intention of the fiction created by Explanation 1 that a nominal partition must be deemed to have taken place immediately before the death of the coparcener concerned is to crystallise the interest of that co-parcener. Consequently, the Kartha will have no right to deal with that property thereafter. Once the particular interest ceases to be part of the joint family or the co-parcenery property, the right of the Kartha with reference thereto automatically and inevitably comes to an end. This result flows directly from the Proviso read with Explanation 1”. This decision is applicable to the case on hand. 18. Reliance is also placed upon Thimmaiah v. Ningamma, (2000)7 S.C.C. 409 and this decision is also based on Sec.6 of the Hindu Succession Act. 19. It is, therefore, clear from the aforesaid decisions that when there is evidence to show that there was a male son and later he died, he would be entitled to a share in the property in view of Sec.6 and the fourth plaintiff being class 1 of the heir is entitled to succeed to the property. The available evidence oral and documentary clearly established that the sale was not effected by D-1 for family necessity and binding purposes and under the circumstance, the plaintiffs are entitled to their share in the property. The lower appellate Court has analysed the evidence and the documents in the proper perspective and there is no illegality or infirmity in the order calling for interference. Hence, the points are answered accordingly. 20. For the reasons stated above, the second appeal fails and it is dismissed. There would be no order as to costs. Consequently, the connected C.M.P. is also dismissed.