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2001 DIGILAW 1159 (MAD)

T. K. Kamala and others v. A. R. Thulasi Rao

2001-10-01

A.RAMAMURTHI

body2001
JUDGMENT: The plaintiffs in O.S.No.10309 of 1987 on the file of VII Assistant Judge, City Civil Court, Madras, have preferred the second appeal aggrieved against the judgment and decree made in A.S.No.258 of 1995 dated 24.6.1996 reversing the judgment and decree of the trial Court dated 30.6.1994. 2. The case in brief is as follows: The plaintiffs filed a suit for partition and separate possession of their 1/3rd share in the suit property and also claimed past and future damages. The suit property originally belonged to one Ramaiyer and he got the same under the partition deed dated 19.5.1967. The said Ramaiyer died intestate on 8.3.1969 leaving behind the plaintiffs (daughters) and the defendant (son) as legal heirs. They are each entitled to 1/3rd share in the property. The defendant is residing in a portion of the property and the other portions have been rented out to 3 tenants on a monthly rent. The defendant alone is collecting the rents and the plaintiffs are deprived of their legitimate share. In spite of repeated demands and legal notice, partition was not effected. The suit property is yielding a monthly rent of Rs.385 and the plaintiffs are claiming a sum of Rs.5,040 towards past mesne profits. Hence, the suit. 3. The defendant admitted the relationship of the parties, but stated that the plaintiffs are entitled to only 1/6th share of the property under Hindu Law since the property is ancestral one. There are only 3 tenants and one portion is lying vacant and the total rent collected is only Rs.150 per month. The notice issued by the plaintiffs has been suitably replied. The plaintiffs are not entitled to any mesne profits. The suit is also not maintainable as the property is under valued. There is also a charge decree against these properties as ordered in O.S.No.732 of 1971 on the file of City Civil Court, Chennai for a sum of Rs.8,600. The plaintiffs are liable to pay their share. The defendant also spent considerable amount towards funeral expenses of the parents and also towards discharge of mortgage debts and the plaintiffs are bound to pay their due share before claiming partition. He is also paying the house tax and the plaintiffs are bound to pay their share. Further, the plaintiffs are not entitled to claim partition since the extent of the suit is only 1,200 sq.ft. He is also paying the house tax and the plaintiffs are bound to pay their share. Further, the plaintiffs are not entitled to claim partition since the extent of the suit is only 1,200 sq.ft. and each plaintiff is entitled to 200 sq.ft. and division of the suit property by metes and bounds is impossible. He is willing to give their legitimate share of 1/6th share each in cash subject to their liability for the expenditures already incurred. 4. The trial Court framed 4 issues and on behalf of the plaintiffs, P.W.1 was examined and Exs.A-1 to A-6 were marked and on the side of the defendant, D.W.1 was examined and Exs.B-1 to B-18 were marked. The trial Court granted a preliminary decree for partition of the suit properties into three shares and allot one share each to the plaintiff and the mesne profits are left open to separate proceedings. The defendant preferred A.S.No.258 of 1995 on the file of III Additional Judge, City Civil Court, Chennai and the learned Judge after hearing the parties, modified the judgment and decree of the trial Court and directed partition of the properties into 6 shares and allot 2 shares to the plaintiffs and 4 shares to the defendant and the plaintiffs are entitled to get the value of two shares. Aggrieved against this, the plaintiffs have come forward with the present second appeal. 5. At the time of admission of the second appeal, the following substantial question of law was framed by this Court for consideration: Is the lower appellate Court correct in holding that the entire suit property is ancestral in nature to the respective parties in the suit in the light of Ex.A-1, the partition deed dated 19.5.1967? 6. Heard, the learned counsel of both sides. 7. There is no dispute that the suit property belonged to one Ramaiyer with absolute power of alienation under a Deed of Partition dated 19.5.1967. The said Ramaiyer died intestate on 8.3.1969 and admittedly, the plaintiffs and the defendant are the legal heirs. The plaintiffs claimed each 1/3rd share in the properties, but, the defendant contended that the property is an ancestral one and, as such, each plaintiff is entitled to get only 1/6th share in the property. The said Ramaiyer died intestate on 8.3.1969 and admittedly, the plaintiffs and the defendant are the legal heirs. The plaintiffs claimed each 1/3rd share in the properties, but, the defendant contended that the property is an ancestral one and, as such, each plaintiff is entitled to get only 1/6th share in the property. Apart from that, the defendant had met the funeral expenses and also discharged number of earlier debts and the plaintiffs are bound to pay their due share before claiming partition of the property. It is further stated that the plaintiffs cannot claim partition of the property considering the fact that the total extent is only 1,200 sq.ft. and if that be so, each plaintiff is entitled to get only 200 sq.ft. and, as such, they can be directed to get the value of the same. 8. The trial Court granted preliminary decree for partition of the property into 3 shares and to allot one share to each of the plaintiff and the same was modified by the lower appellate Court directing the property to be divided into 6 equal shares and the plaintiffs are each entitled to one share and for which, the plaintiffs can be directed to get the value of the same. Learned counsel for the appellants/ plaintiffs contended that the suit property is not the ancestral property and as such, the lower appellate Court ought to have confirmed the preliminary decree of the trial Court. The property originally belonged to the grandmother of the plaintiffs and it will not be an ancestral one. Even according to the partition deed dated 19.5.1967, the parties admitted that they were only co-owners and as such the same cannot be treated as a joint family property. The property also fetched rental income and as such, the alleged discharge of the loan could have been met only out of the said income. Sec.23 of the Hindu Succession Act will be a bar only if the property is in the exclusive possession of the male member. Since admittedly the property is in the occupation of the tenants, the claim of the respondent invoking Sec.23 is not correct. Even assuming that the superstructure was constructed by the grandfather of the parties, the same should be treated only as a gift in favour of the grandmother of the parties. 9. Since admittedly the property is in the occupation of the tenants, the claim of the respondent invoking Sec.23 is not correct. Even assuming that the superstructure was constructed by the grandfather of the parties, the same should be treated only as a gift in favour of the grandmother of the parties. 9. Reliance is placed upon a decision of the Apex Court in Commissioner of Wealth Tax, Kanpur and others v. Chander Sen and others, (1986)3 S.C.C. 567 , for the proposition that normally whenever the father gets a property from whatever source, from the grandmother or from any other source, be it separated property or not, his son should have a share in that and it will become part of the joint Hindu family of his son and grandson and other members who form joint Hindu family with him. But this position has since been affected by Sec.8 of the Hindu Succession Act. Since the Preamble to the Act reiterates that the Act is to ‘amend’ and codify the law and Sec.4 thereof makes it clear that one should look to the Act in case of doubt and not the pre-existing Hindu Law, the express words of Sec.8 of the Act would prevail over the aforesaid general law. When therefore, son inherits the property in the situation contemplated by Sec.8, he does not take it as karta of his own undivided family but takes it in his individual capacity. 10. It has also been held in Narasimha Murthy v. Smt.Susheelabai, (1996)2 L.W. 386, that Sec.23 of the Hindu Succession Act is inapplicable where a house is let out to a tenant and is, therefore, not a “dwelling house”. 11. Learned counsel for the respondent also relied on Baby Ammal v. Rajan Asari, (1997)2 L.W. 453, for the principle that for a gift under Sec.122 of Transfer of Property Act, proof of delivery of possession and acceptance is necessary. In the absence of any acceptance, the document cannot be construed as a gift, but it can be considered only as a licence. 12. There is no dispute that the plaintiffs are the legal heirs of the deceased. Although it is stated that the property is an ancestral property, it has not been substantiated by the defendant. In the absence of any acceptance, the document cannot be construed as a gift, but it can be considered only as a licence. 12. There is no dispute that the plaintiffs are the legal heirs of the deceased. Although it is stated that the property is an ancestral property, it has not been substantiated by the defendant. There can be a presumption that the family continues to be joint, but there cannot be any presumption that the property possessed by the family should be a joint family property. The plaintiffs being daughters of the deceased are also class I heirs and entitled to inherit the property along with the son in the absence of proof that they are ancestral properties. So far as this case is concerned, the defendant failed to establish that it is the ancestral property and under the circumstances, the Court is of the view that the plaintiffs as well as the defendant are each entitled to 1/3rd share in the property. 13. Learned counsel for the respondent/ defendant contended that the entire extent of the property is only 1,200 sq.ft. and if divided, it cannot be conveniently enjoyed by the parties and, as such, the plaintiffs can be directed to get the value of the same. I am of the view, that it is a matter to be considered only at the time of the final decree proceedings. So far as this case is concerned, what is the legal share due to the plaintiffs alone has to be declared. 14. Learned counsel for the respondent/ defendant further stated that he had discharged number of debts and also met the funeral expenses of his parents and the plaintiffs before getting their due share in the property are liable to pay their share also. It is admitted that the property was rented out to 3 tenants and the rents were collected only by the defendants. In the present case, the plaintiffs have also claimed the relief of mesne profits and when once the plaintiffs are entitled to get the share in the property, the question of mesne profits has to be decided in a separate proceedings. There is a duty cast on the defendant to render accounts relating to the income from the property and if any amount is due towards any legally enforceable debt, then the plaintiffs are bound to pay the same. There is a duty cast on the defendant to render accounts relating to the income from the property and if any amount is due towards any legally enforceable debt, then the plaintiffs are bound to pay the same. The Court is of the view that the liability payable by the plaintiffs also can be considered in the final decree proceedings. However, no evidence has been let in on the side of the defendant to prove about the discharge of earlier debts and as such it is just and proper to be left open to final decree proceedings. 15. Learned counsel for the respondent/ defendant next took shelter under Sec.23 of the Hindu Succession Act and claimed that the plaintiffs are not entitled to claim the partition of the dwelling house. Sec.23 of the said Act is extracted as follows: “23. Where a Hindu intestate has left surviving him or her both male and female heirs specified in Class I of the Schedule and his or her property includes a dwelling house wholly occupied by members of his or her family, then notwithstanding anything contained in this Act, the right of any such female heir to claim partition of the dwelling house shall not arise until the male heirs choose to divide their respective shares therein; but the female heir shall be entitled to a right of residence therein: Provided that where such female heir is a daughter, she shall be entitled to a right of residence in the dwelling house only if she is unmarried or has been deserted by or has separate from her husband or is a widow”. 16. It is therefore clear from the language employed under Sec.23, if the dwelling house is occupied, by any male member of the house, then naturally the right of female heir to claim partition of the dwelling house has to wait until the male heir choose to decide their respective shares therein. However, the female heir shall be entitled to a right of residence. In the present case, admittedly the property was rented out to third parties. The defendant also in the written statement stated that 3 tenants are occupying the property and one portion is lying vacant. However, the female heir shall be entitled to a right of residence. In the present case, admittedly the property was rented out to third parties. The defendant also in the written statement stated that 3 tenants are occupying the property and one portion is lying vacant. There is no pleading in the written statement that the defendant is occupying one portion of the property and, as such, the plaintiffs are not entitled to claim partition of the dwelling house in view of Sec.23 of the Hindu Succession Act. Considering the fact that the defendant is not in occupation of any portion of the dwelling house, the Court of the view Sec.23 of the Hindu Succession Act cannot be applied to the case on hand and, as such, the plaintiffs are entitled to claim partition. It is stated that the property was inherited only from the grandmother and even assuming that the superstructure was put up by the grandfather, it cannot be concluded that it is an ancestral property. Under the circumstance, there is no difficulty in coming to the conclusion that the plaintiffs as well as the defendant are entitled to claim equal share in the property. So far as the liabilities and mesne profits are concerned, it can be left open to separate proceedings. Unfortunately, the lower appellate Court misdirected itself and came to the conclusion without any basis that the suit property is an ancestral one and reduced the share of the plaintiffs. When the finding of the lower appellate Court is not based on sound legal positions and on erroneous appreciation of law, interference is called for. 17. For the reasons stated above, the second appeal is allowed and the judgment and decree of the lower appellate Court are set aside and the judgment and decree of the trial Court are restored. However, there will be no order as to costs. Consequently, C.M.Ps. No.16439 and 16440 of 1996 are closed.