Madras High Court
Kokila vs Swathanthira on 30 December, 2003
Author: R.Banumathi
Bench: R.Banumathi
In the High Court of Judicature at Madras
Dated: 30/12/2003
Coram
The Honourable Mr.Justice P.SHANMUGAM
and
The Honourable Mrs.Justice R.BANUMATHI
Appeal Suit No.69 of 2003
and
Cross Objection No.40 of 2003
A.S.No.69 of 2003:
Kokila ..Appellant
-Vs-
1. Swathanthira
2. Mallika
3. Thavamani
4. Abirami
5. Santhi ..Respondents
Cross Objection No.40 of 2003:-
1. Swathanthira
2. Abhirami ..Cross Objectors
..vs..
1. Kokila
2. Mallika
3. Dhavamani
4. Santhi ..Respondents
Appeal Suit and Cross Objection filed against the judgment and decree
dated 24.04.2002 in O.S.No.3053 of 1998 on the file of VII Additional Judge,
City Civil Court, Chennai
!For Appellant : Mr.SDN.Vimalanathan
^For Respondents: Mr.K.Hariharan
After hearing both counsel on 05.12.2003, we have reserved the Appeal
for judgment. During discussion on 09.12.2003, we have differed in our views
and there was difference of opinion between us in the matter. Therefore, I
have rendered my separate judgment giving reasonings after settingforth the
pleadings and findings of the trial court and also the contentions of the
parties.
In this Appeal, I have also received two additional documents in CMP
No.10477/2003 as additional documents (Exs.B-10 and B-11) for the reasons
setforth infra in the judgment.
:JUDGMENT
R.BANUMATHI, J., This Appeal arises out of judgment and decree of VII Additional Judge, City Civil Court, Chennai in O.S.3053/1998 dated 24.04.2002. Plaintiff is the Appellant. D2 and D5 have preferred the Cross Objection.
2. The Appeal arises on these common grounds;-
The dispute relating to Suit Properties:-
'A' Schedule - residential house at No.19, Mandaveli; 'B' Schedule - a Lodge bearing Door No.9, Nallathambi Mudali Street, Triplicane.
Suit for Partition of 1/4th share of 'A' and 'B' Schedule Property was decreed. However, finding that 'A' schedule Property being the residential house, under Section 23 of Hindu Succession Act, the trial court postponed Plaintiff's claim of Partition.
3. The parties are related as under:-
Appasami Mudaliar (died in 1918) = Kamalammal(died in 1928) |
---------------------------------------
| |
Thirunavukkarasu Rathina Sabapathy
Mudaliar Mudaliar
(died on 18.07.1974)
=Krishnaveni died in 1994
|
|
---------------------------------------------------- | | | | Kokila Malliga Ramachandran Swathanthira (married-1958) (married-1967) D1 (daughter) Plaintiff D3 died on (Spinster)D2 30.10.2000 |
-------------------------------------------
| | | | | | Thavamani Abhirami Shanthi (widow) (daughter)married (daughter)(unmarried) D4 D5 D6
4. Case of Plaintiff is that Suit Properties are self acquired properties of Plaintiff's father Rathina Sabapathy Mudaliar. After his death, Plaintiff, Defendants and their mother Kamalammal have been in joint possession and enjoyment of the suit Properties. Since the first Defendant was adopting hostile attitude towards the Plaintiff, Plaintiff issued Ex.A-1 Notice to the Defendants calling upon them to effect Partition and separate possession. Since the Defendants have not effected the Partition, Plaintiff has filed the Suit for,-
(i) Partition of 1/4th share and to pass Preliminary Decree and to appoint Commissioner for division of the Properties;
(ii) for determination of future mesne profits to order enquiry under Order XX Rule 12 CPC, and such other reliefs.
5. D1 has filed the Written Statement denying that the Suit Properties are the self acquired properties of Rathina Sabapathy Mudaliar. According to D1, Appasamy Mudaliar - grandfather of the Defendant has executed a registered Will dated 21.10.1918. Appasamy Mudaliar bequeathed two items of Properties (i) No.17, Taylors Road, Kilpauk; and (ii) Door No.36, Hunters Road, Vepery, Chennai. The Properties were bequeathed to the father of the first Defendant and his brother Thirunavukkarasu Mudaliar appointing Kamalammal, their mother as Executrix of the Will. The said Will was probated in O.P.No.274/1919. Later, Rathina Sabapathy Mudaliar and his brother Thirunavukkarasu Mudaliar have divided the Properties amongst themselves under the Partition Deed dated 02.07.1951. The ancestral Property bearing Door No.17, Taylors Road, Kilpauk was sold by the father of D1 in November 1961. That Sale Deed was executed by the father of D1 for himself and onbehalf of D1
- who was then minor. From out of the sale proceeds, Suit Property - Schedule 'B' in Door No.9, Nallathambi Street, Triplicane, which is presently the Mansion, was purchased by D1 under Ex.B-4 Sale Deed.
6. Likewise, the ancestral Property in Door No.36, Hunters Road, Vepery was sold by D1's father Rathina Sabapathy Mudaliar on 29.03.1973 for a sale consideration of Rs.1,05,000/-. On the very same day, utilising part of the sale consideration, residential house in Mandhaveli - 'A' Schedule Property was purchased by D1. Thus, both Items of Suit Properties are the joint family Properties of D1 and his father Rathina Sabapathy Mudaliar. The Suit Properties are not self acquired Properties of Rathina Sabapathy Mudaliar. In any event, Plaintiff is not entitled to a share in the Suit Properties since at the time of marriage, Plaintiff was provided lot of jewels and her marriage was performed in a grand manner. The Plaintiff being excluded from the possession of the Suit Properties, she is not entitled to a share in the Suit Properties.
7. On the above pleadings, two issues were framed in the trial court. Parties adduced oral and documentary evidence. Onbehalf of the Plaintiff, P.W.1, Natesa Mudaliar was examined. D2 / Swathanthira was examined as D.W.1. Exs.A-1 and A-2 and B-1 to B-9 were marked. Upon consideration of the evidence, trial court passed Preliminary Decree for Partition of 1/4th share on the following findings,-
(i) that the Defendants have not proved 'A' Schedule Property purchased from out of joint family funds and that 'A' schedule Property is the self acquired Property of Rathina Sabapathy Mudaliar;
(ii) Plaintiff being married daughter and D1 - the son and D2 - the unmarried daughter, and 'A' Schedule Property being the residential house, deferred the Partition of 'A' Schedule house under Section 23 of Hindu Succession Act;
(iii) that there is nothing to correlate that 'B' Schedule Property in Triplicane was purchased from out of the sale proceeds of the ancestral Property i.e. Door No.17, Taylors Road.
On the above findings, the Trial Court passed the Preliminary decree for Partition. However, the trial Court postponed the division of the residential house in Mandaveli - 'A' Schedule Property.
8. Aggrieved over postponement of division of the Property - 'A' Schedule Property under Sec.23 of Hindu Succession Act, Plaintiff has preferred this Appeal. As against passing of Preliminary Decree of Partition of 1/4th share, Defendants 2 and 5 have preferred the Cross Objection. In the Cross Objection, main contention urged onbehalf of Cross Objectors / Defendants 2 and 5 is that the property in the hands of Rathina Sabapathy Mudaliar was purely a coparcenary property / ancestral property passed on to Rathina Sabapathy Mudaliar as per the Will probated. It is the further contention that Rathina Sabapathy Mudaliar had no independent income of his own but only survived to the estate of the ancestors. Claiming the suit property to be Hindu joint family property, it is submitted that Rathina Sabapathy Mudaliar, D1 Ramachandran and D2 Swathanthira being unmarried female heir succeeded to the property under survivorship. Contending that the Hindu Succession Act (Tamil Nadu Amendment Act), 1989 is applicable and by virtue of which D2 - unmarried daughter becomes a coparcener, it is submitted that the Trial Court erred in not considering the applicability of the provisions of Tamil Nadu Amendment Act, 1989. Ouster of Plaintiff from the enjoyment of the Suit Property is yet another point urged onbehalf of Defendants 2 and 5 / Cross Objectors.
9. Adopting the reasonings and findings of the trial court and at the same time insisting for immediate division of 'A' Schedule Property, the learned counsel for the Appellant / Plaintiff has urged that the Suit Properties are proved to be neither the coparcenary Properties nor the joint family Properties. The Main contention is, when Appasamy Mudaliar had bequeathed the Properties under the Will (which was also probated), the sons Thirunavukkarasu Mudaliar and Rathina Sabapathy Mudaliar had acquired the same as their self acquired Properties. Taking us through the written statement, the learned counsel for the Plaintiff submitted that the nature and character of the Suit Property is not clearly setforth in the written statement and further submitted that there is no evidence or pleadings that the Property acquired by Rathina Sabapathy Mudaliar from his father under the Will was thrown into the common hotchpot. Drawing the attention of the Court to Ex.B-5 Sale Deed and placing reliance upon 1996 (1) MLJ 251, it is further submitted that merely because the son - D1 signed in the Sale Deed would not show that the Property is thrown into the common hotchpot. It is the further contention that D2 though an unmarried daughter is placed on the similar footing as that of the Plaintiff, it is submitted that D2 cannot have any march over the Plaintiff's claim of right taking advantage of the provisions of Hindu Succession ( Tamil Nadu Amendment) Act, 1989.
10. Assailing the findings of the trial court and allotment of 1/4 th share to the Plaintiff, onbehalf of the Defendants it is submitted that D1 being a Hindu coparcener, has acquired right by birth in the Property of his grandfather. It is further submitted that in spite of the Will, Rathina Sabapathy Mudaliar and Thirunavukkarasu Mudaliar have succeeded to the Property under Non-testamentary succession and that there is devolution by survivorship. It is submitted that when the family properties devolved upon Rathina Sabapathy Mudaliar by survivorship bequeathing the Properties under Will, would not be of any legal importance. Further contention is that in any event subsequent conduct of parties would clearly establish that father and son (D1) were in joint enjoyment of the properties. The Defendants mainly rely upon proximity of time in purchase of 'A' and 'B' Schedule Properties and Exs.B-3 and B-5 Sale Deeds. It is submitted that Suit 'B' Schedule Property was purchased from out of the sale proceeds of the ancestral Property in Door No.17, Taylors Road, Kilpauk sold under Ex.B-3. Learned counsel for the Respondents / Defendants has further drawn the attention of the Court to purchase of 'A' schedule Property - residential house in Mandhaveli on 29.03.1973 from out of the sale consideration under Ex.B-5 selling the ancestral property in Door No.36, Hunters Road on the same day i.e.29.03.1973.
11. C.M.P.No.10477/2003: Petition filed under Or.41 R.27 CPC.
This Petition was filed by the Defendants to receive additional documents including the finding of the Income Tax Appellate Tribunal that the Suit Properties are the Hindu joint family Properties of Rathina Sabapathy Mudaliar and D1. Inasmuch as 27 documents are filed. Upon hearing the arguments of both, for proper and effective adjudication of the contentious points arising between the parties in this Appeal, I am of the view that the following two documents could be received as additional evidence:-
(i) Mortgage Deed executed by K.Rathina Sabapathy and Ramachandran to T.Vajravelu dt.01.03.1972.
(ii) Certified copy of Order of Income Tax Appellate Tribunal, Madras dt.25.05.1979.
Accordingly, the documents are received as additional evidence and are marked as Exs.B-10 and B-11 by me.
12. Most of the documents filed along with the Petition relate to the period subsequent to the death of Rathina Sabapathy Mudaliar and how the parties - Krishnaveni and Ramachandran (D1) dealt with the Properties. In my view, those documents are not of much relevance. For instance, one of the documents sought to be filed as additional evidence is the Mortgage Deed (dated 31.10.1979) executed by Krishnaveni Ammal(1), Ramachandran (2), and Swathanthira-D2 (3) in favour of one M.G.L.Doss borrowing a sum of Rs.35,000/=. This Mortgage Deed, subsequent to the death of Rathina Sabapathy Mudaliar, would not in any way advance the case of the Defendants that the Plaintiff was excluded from the possession from being in joint possession of the Suit Properties.
13. Likewise, another Mortgage Deed for Rs.45,000/= (dated 22.06.19
81) is sought to be filed as additional evidence. This is a Mortgage Deed by Krishnaveni (1) and Swathanthira -D2 (2) in favour of one K.Natarajan borrowing Rs.45,000/=. The said Mortgage Deed refers to a Release Deed executed by D1 Ramachandran relinquishing all his rights in the joint Hindu family in favour of his mother Krishnaveni and his sister Swathanthira D2. Asserting their individual rights, the Mortgagors viz., Krishnaveni and Swathanthira D2 have borrowed Rs.45,00 0/= from the said K.Natarajan. This Mortgage Deed also would not in any way advance the case of the Defendants that the Plaintiff was excluded from the possession nor would it establish the rights of Krishnaveni and D2 Swathanthira. It is relevant to note that the contention that D1 Ramachandran had already relinquished his rights was not at all raised before the trial court either in the written statement or during the trial. D2 has only adopted the written statement filed by D1, in which there is no pleading on these aspects. In the trial court, no documents were filed raising this point. Therefore, in my view, excepting the above two documents stated in para(11), number of other documents filed in CMP No.10477/2003 are not of much relevance and not taken into consideration.
14. Upon consideration of submissions by both sides, judgment under Appeal and the materials on record and the additional documents received in this Appeal, in my considered view, the following points arise for determination;
(i) Whether the joint family consisting of Thirunavukkarasu Mudaliar and Rathina Sabapathy Mudaliar, did not have joint family Property ?
(ii) Whether D1 is not right in contending that 'A' Schedule Property - residential house in Mandhaveli was purchased by selling joint family property in Door No.36, Hunters Road under Ex.B-5 Sale Deed ?
(iii) Are not the Defendants right in claiming that B Schedule Property - Mansion in Triplicane was purchased from and out of the sale proceeds by selling the joint family property in Door No.17, Taylors Road, Kilpauk ?
(iv)Whether the trial court was right in finding that the Suit Properties are the self acquired Properties of Rathina Sabapathy Mudaliar and right in passing Preliminary Decree for Partition of 1/4th share ?
15. Points 1 to 4:- The trial court has found that the Defendants have not proved that the Properties were purchased from out of the sale proceeds of the ancestral Properties. 'A' and 'B' Schedule Properties were found to be the self acquired properties of Rathina Sabapathy Mudaliar mainly on the basis of the Will left by Appasamy Mudaliar. After careful consideration of the evidence on record, I have no reservation in observing that the finding of the lower court is not based on the materials on record. The findings of the trial court is perverse without proper appreciation of the evidence on record.
16. Coparcenary property of Appasamy Mudaliar's family:
Let us recapitulate the genealogy of the family of Appasamy Mudalir. Appasamy Mudaliar and his two sons, viz., Thirunavukkarasu Mudaliar and Rathina Sabapathy Mudaliar constitute the coparcenary. A Hindu coparcenary is a much narrower body than the joint family. Generally speaking, Hindu coparcenary includes sons, grandsons and great grandsons of the holder of the joint Property for the time being. In other words, Hindu coparcenary comprises of three generations next to the holder in unbroken male descendant. In a Hindu coparcenary, a coparcener acquires right by birth in the joint coparcenary property.
17. The status of the undivided Hindu family or the coparcenary is apparently too familiar to everyone requiring any discussion. However, we may refer to the following passage in AIR 1988 SC 576 for better understanding of the question urged in this Appeal.
"The coparcenary consists of only those persons who have taken by birth an interest in the property of the holder and who can enforce a partition whenever they like. It is a narrower body than joint family. It commences with a common ancestor and includes a holder of joint property and only those males in his male line who are not removed from him by more than three degrees. The reason why coparcenership is so limited is to be found in the tenet of the Hindu religion that only male descendants up to three degrees can offer spiritual ministration to an ancestor. Only males can be coparceners".(See: Hindu Law by N.R.Raghavachariar 8th Edition P.2021) Thus, Appasamy Mudaliar and his sons Thirunavukkarasu Mudaliar and Rathina Sabapathy Mudaliar constitute the coparcenary. Appasamy Mudaliar and his wife Kamalammal and their sons Thirunavukkarasu Mudaliar and Rathina Sabapathy Mudaliar were living as joint family. When once the existence of joint family is not disputed, the property held by the family assumes the character of coparcenary property. Every male member / coparcener within the above said descendant would be entitled to the share by birth.
18. The family of Appasamy Mudaliar owned the following items of Properties interalia;
1. House and Ground Taylors Road, Kilpauk No.1 Resurvey No.145
2. House and Ground Hunters Road, Vepery No.23 Resurvey No.937
3. House and Ground General Muthal Mudali St., No.16 Resurvey No.8012
4. House and Ground Taylors Road, Kilpauk No.17 Resurvey No.137
5. House and Ground Hunters Road, Vepery, No.36 Madras.
Resurvey No.857
6. House and Ground Hunters Road, Vepery, No.22 Madras.
Resurvey No.937 (As seen from Ex.B-1, Partition Deed).
The details of other items of Properties owned by the family are not discernible from the materials on record.
19. Since Appasamy Mudaliar and his sons were living as joint family, undoubtedly the above Properties assumed the character of coparcenary properties. The essential feature of ancestral property is clear from the fact that Appasamy Mudaliar and his sons were living together and have become joint owners. As coparceners / male members, his sons Thirunavukkarasu Mudaliar and Rathina Sabapathy Mudaliar have acquired share in the coparcenary property by birth. There is no material showing that the above Properties are the self acquired Properties of Appasamy Mudaliar. Therefore, according to the MITAKSHARA, the son has a right by birth in his father's and grandfather's estate, but a distinction is made in this respect by Mitakshara itself. In the ancestral or grandfather's property in the hands of the father, the son has equal rights with his father; while in the self-acquired property of the father, his rights are unequal by reason of the father having an independent power over or predominant interest in the same. The son can assert an equal right with the father only when the grandfather's property has devolved upon his father and has become ancestral property in his hands. The property of the grandfather can normally vest in the father as ancestral property if and when the father inherits such property on the death of the grandfather or receives it, by partition, made by the grandfather himself during his life-time. On both these occasions the grandfather's property comes to the father by virtue of the latter's legal right as a son or descendant of the former and consequently it becomes ancestral property in his hands.
20. Will left by Appasamy Mudaliar:-
Appasamy Mudaliar had left the Will dated 21.10.1918 bequeathing the above Properties. In the said Will, Kamalammal was appointed as the Executrix and she was in possession of the Property as Executrix of the Will until she died in 1928. The Property being coparcenary property, the question arises as to what is the effect of the Will left by Appasamy Mudaliar. Prior to 1956, before coming into force of Hindu Succession Act, 1956, no coparcener under Mitakshara can dispose of his undivided interest in the joint family either by way of gift or by Will except with the consent of other coparceners.
Gift or bequest by a coparcener of his undivided interest in coparcenary property would be void in toto and would not bind even the donor or his share in the property.... So also in the case of a will of family property made by all the coparceners, its validity will be upheld on the ground that when they so join together, they constitute one absolute owner of the property and as such they are in a position to make a will. (Emphasis added).
(vide Hindu Law N.R.Raghavachariar - 8th Edition 1987 Page No.383) In one case before the Mysore High Court, Ariyamurthy ..vs.. Subbaraya Setty, the question arose whether a will executed by the father disposing of the joint family property amongst his sons and wife with the consent of the sons, one of whom was a minor at the time, could be upheld either as a will with the consent of all the other coparceners or as family arrangement; it was held that a will by a coparcener though he is the father cannot be upheld even if the sons are shown to have consented to the disposition because, on the death of a coparcener the right of survivorship of the other coparceners prevails over the father's disposition, and that such a disposition cannot be upheld even as a family arrangement since all the parties thereto were not sui juris one of them being a minor. Referring to the decision of the Privy Council in Brijraj Singh ..vs.. Sivadhan Singh, I.L.R.35 All.337 and the decision of the Madras High Court in Subbarama Reddy .. vs.. Ramamma, I.L.R.43 Madras 824, differing from Appanam Patrachariar ..vs.. Srinivasachariar, I.L.R.40 Madras 1122, and of the Bombay High Court in Bika Bai ..vs.. Purushotham, AIR 1926 Bombay 378 the Court came to the conclusion that a testamentary disposition by a coparcener of coparcenary property is fundamentally opposed to the principles of Hindu Law, and that even the consent of the general body of coparceners cannot validate such a disposition.
(vide Hindu Law N.R.Raghavachariar - 8th Edition 1987 Page No.383-384 ).
21. In the light of the above, now the main question that arises for consideration is whether father Appasamy Mudaliar can make such testamentary disposition amongst his sons Thirunavukkarasu Mudaliar and Rathina Sabapathy Mudaliar and whether their acceptance of the Will would in any way affect the survivorship. The Will left by Appasamy Mudaliar not valid in the eye of law and that Will does not have the effect of destroying the right of survivorship. At the most, it could only be taken as a family arrangement without nullifying the coparcenary right and the right of survivorship of Thirunavukkarasu Mudaliar and Rathina Sabapathy Mudaliar. In my view, the Will executed by Appasamy Mudaliar in favour of his own sons would not in any way prevail upon the survivorship nor would take away the coparcenary character of the above Properties and other Properties bequeathed under Will.
22. Only after passing of Hindu Succession Act, 1956, under Section 30 of the Hindu Succession Act, a coparcener can make a valid Will in respect of his undivided interest though he continues undivided till death. Only Section 30 of Hindu Succession Act abrogates the preexisting Hindu Law as regards testamentary disposition of undivided interest. Sec.30 of Hindu Succession Act, 1956 is prospective. It cannot validate the Will made by Appasamy Mudaliar, who died on 04.12.191 8 - prior to coming into force of the Act. No doubt, the Will was probated in the High Court at Madras in O.P.274/1919. It is settled law that a testamentary court whilst granting probate or letters of administration is only concerned with finding out whether or not the Testator executed the testamentary instrument of his free will. Probate of the Will is only to the effect that the testator was in a fit mental condition while making the testamentary disposition. Probate of the Will would not in any way validate that testamentary disposition which otherwise was prohibited under Mitakshara; nor does it take away the character of coparcenary property.
23. Thus the property with the father of D1 and his brother Thirunavukkarasu Mudaliar devolved upon them as coparceners under survivorship. Appasamy Mudaliar did not intend that the Property should be taken by the sons as their own self acquisition is clear by more than one aspect.
(i) Appointment of Kamalammal as the Executrix of the Will;
(ii) Separate Properties were not bequeathed to Thirunavukkarasu Mudaliar and Rathina Sabapathy Mudaliar and it was common bequest;
(iii) that even after death of Appasamy Mudaliar, the brothers continued to jointly enjoy the Property.
24. The above findings is fortified by the Deed of Partition - Ex. B-1 (dated 02.07.1951) between the brothers. From the recitals in Ex.B-1, Partition Deed, it is clear that Thirunavukkarasu Mudaliar and Rathina Sabapathy Mudaliar were in common enjoyment of the bequeathed properties as is clear from the following:-
"Whereas Kamalammal the mother of the parties hereto was in possession of the properties as Executrix of the said Will until 1928 when she died. Whereas since the death of their mother the parties hereto have been enjoying the properties absolutely in common till now".
Under Ex.B-1 Partition Deed, 'B' Schedule Property - the following items were allotted to the share of Rathina Sabapathy Mudaliar.
House and ground No.17, Taylors Road, Kilpauk;
House and ground No.36, Hunters Road, Vepery;
House and ground No.22, Hunters Road, Vepery.
It is the definite case of the first Defendant that the above Properties allotted to Rathina Sabapathy Mudaliar were sold and from that sale proceeds, the Suit Properties 'A' and 'B' Schedule were purchased. It is his further case that Suit Properties so purchased from out of the sale proceeds of the family properties were commonly enjoyed by him and his father Rathina Sabapathy Mudaliar and the Suit Properties are Hindu joint family property.
25. Purchase of 'B' Schedule Property:-
Sale under Ex.B-3 Sale Deed dt.03.11.1961.
Rathina Sabapathy Mudaliar for himself and on behalf of his minor son Ramachandran (D1) had sold the Property in Door No.17, Taylors Road, Kilpauk together with the buildings thereon under Ex.B-3 Sale Deed (dated 03.11.1961) for Rs.45,000/= in favour of Joseph Taliath. Rathina Sabapathy Mudaliar had sold the Property for himself and as Manager of joint family as seen from the following recitals in Ex.B-3 .
"In witness whereof the first vendor has hereunto set his hands for self and as father and guardian of the second vendor and as Manager of the Joint Family consisting of himself and the second vendor for self and as guardian of minor son K.Rathina Sabapathy Mudaliar".
26. Two things emerge from the above recitals;
(1) D1 Ramachandran was the Member of the Joint Hindu Family and that his father Rathina Sabapathy Mudaliar was the Manager of the joint family consisting of himself and D1;
(ii) D1 - then minor son was included as vendor.
Inclusion of D1, the then minor son as vendor in Ex.B-3 is a formidable circumstance, evidencing his right in the joint family Properties. It clearly establishes that the properties were enjoyed in common as the Hindu undivided family properties. It is too farfetched the arguments that D1, then minor son was added merely at the insistence of the purchaser.
27. 'B' Schedule Property - Ex.B4 (09.03.1962) 'B' Schedule Property is the Mansion in Door No.9, Nallathambi Street, Triplicane purchased by Rathina Sabapathy Mudaliar under Ex. B-4 Sale Deed (09.03.1962) for Rs.96,000/=. Case of Defendants is that the sale proceeds under Ex.B-3 Sale Deed (dt.03.11.1961) was utilised for purchase of 'B' Schedule Property. The proximity time of purchase of 'B' Schedule (within four months from sale under Ex.B-3) clearly suggests that sale proceeds of Ex.B-3 was utilised for purchase of B Schedule Property.
28. The fact remains that at the time of purchase of 'B' Schedule under Ex.B-4, Rathina Sabapathy Mudaliar was the Manager of the joint family consisting of himself and D1. The arguments advanced onbehalf of the Plaintiff as to why D1 did not insist for being included as purchaser under Ex.B-4 is purely argumentative. It is to be noted that at the time of purchase of 'B' Schedule Property, D1 being junior member of the joint Hindu family, was only aged about 16-17 years. He cannot be expected to have insisted for inclusion of his name as purchaser under Ex.B-4 Sale Deed. In my view, the proximity of time of purchase of B Schedule Property within four months of sale of joint family property in No.17, Taylors Road, Kilpauk coupled with the evidence of D.W.1 clearly shows that the acquisition of 'B' Schedule Property was made with the aid of Hindu joint family property.
29. Purchase of 'A' Schedule Property:-
Sale under Ex.B-5 Sale Deed (29.03.1973) The joint family Property in 36, Hunters Road, Vepery allotted to Rathina Sabapathy Mudaliar under Ex.B-1 Partition Deed was sold to one Mohammed Ishaq under Ex.B-5 Sale Deed dated 29.03.1973 by Rathina Sabapathy Mudaliar and D1 Ramachandran for Rs.1,05,000/=. Here again, inclusion of D1 Ramachandran as the vendor is a strong piece of evidence indicating that the Property was in joint enjoyment of the father and son. Trial court erred in overlooking such joint possession and enjoyment of Rathina Sabapathy Mudaliar and D1.
30. Purchase of 'A' Schedule Property under Ex.B-6 Sale Deed ( dated 29.03.1973):-
Utilising the sale proceeds of Ex.B-5 Sale Deed, on the same date i.e.29.03.1973 'A' Schedule Property - residential house in Mandhaveli was purchased for a sale consideration of Rs.45,000/=. The fact that 'A' Schedule Property was purchased on the date of sale under Ex.B-5 clearly shows that the Suit 'A' Schedule Property was acquired from out of the sale proceeds of the Hindu joint family property. No amount of arguments advanced by the Plaintiff could upset this strong evidence.
31. The trial court committed serious and substantial error in overlooking the formidable circumstances stating that in Ex.B-6 Sale Deed, there are no recitals as to the source of consideration and wherefrom the consideration flew. How could a draftsman of the Sale Deed be expected to mention the source of consideration and how the vendors have raised the purchase money. The reasonings of the trial court cannot be strained to such an extent of ignoring the clear inference to be drawn that the sale under Ex.B-5 and purchase under Ex.B-6 are one and the same day. By so saying, the trial court sidestepped the strong evidence that the sale and purchase being on the same day, namely, 29.03.1973. The sale consideration under Ex.B-5 for a huge sum of Rs.1,05,000/= and purchase under Ex.B-6 was only for a lesser amount of Rs.45,000/=. From which the Trial Court ought to have drawn the legitimate inference that the sale proceeds from out of Ex.B-5 must have been utilised for purchase under Ex.B-6. I am unable to subscribe to the views of the trial court that the source of consideration is not indicated in Ex.B-6 Sale Deed and that the Suit Properties are the self acquisition of Rathina Sabapathy Mudaliar.
32. Conduct of the Parties:(C.M.P.10477/2003) Ex.B-10, Additional document received in this Appeal, is the Mortgage Deed (dated 01.03.1972) executed by Rathina Sabapathy Mudaliar and D1 Ramachandran to one Vajravelu borrowing Rs.32,000/=. Both Rathina Sabapathy Mudaliar and D1 Ramachandran have jointly mortgaged the Property at Triplicane
- 'B'Schedule Property for its further improvement. The fact that both father and son have jointly mortgaged 'B' Schedule Property is the strong evidence showing joint possession and enjoyment and that the Suit Properties are Hindu joint family property. In the property in Ex.B-10, as Mortgagors Rathina Sabapathy Mudaliar and Ramachandran D1 claimed themselves to be the members of Hindu coparcenary as seen from the following;
"...they constitute members of the Hindu coparcenary and since the purchase the mortgagors had been in absolute possession, enjoyment and ownership of the same and for the purposes of construction of top floor vide B.A.No.1366/69 and for improvement of the property the mortgagors are in need of funds.."
33. In the decision relied upon by the Plaintiff in 1996 I MLJ Page No.251, it was held that the mere fact that the son joined in execution of subsequent mortgage deeds would not be sufficient to show that father intended to waive his separate right over his selfacquisition. That Principle has no bearing in the case in hand. Ex.B-10 is not the one solitary instance, where D1 was joined as the co-mortgagor. It is only one of the transactions evidencing the conduct of the parties which would impress the same with joint family character.
34. My conclusion that the Suit Properties are the joint Hindu family Properties is further strengthened by the Order of the Income tax Appellate Tribunal received by me as additional evidence Ex.B-11. After the death of Ramachandran, for the purpose of estate duty, the Assistant Controller found that the Property exclusively belonged to deceased Rathina Sabapathi Mudaliar and that the duty is payable as the exclusive property of Rathina Sabapathy Mudaliar passed into the hands of the legal heirs. In the Appeal preferred, the Appellate Controller of Estate Duty found that the Properties were acquired by Rathina Sabapathy Mudaliar from his father and was in enjoyment of the Hindu undivided family. The Assistant Controller of Estate Duty further found that the Properties were thrown into the family hotchpot and therefore deceased Rathina Sabapathy Mudaliar had only half share. As against the order of Appellate Controller of Estate Duty, the Department preferred Appeal before the Income Tax Appellate Tribunal, Madras. Upholding the conclusion of the Appellate Controller, the Income Tax Tribunal found "....... it has to be held that the Properties in question belonged to the Hindu undivided family of which the deceased was the karta and that on the death of the deceased only the half share therein to which he would have been entitled on partition had passed under section 7 of the Estate Duty Act......". The contention raised by the Department that the income shown as joint undivided family income only for the purpose of gaining tax advantage was rejected by the Appellate Tribunal in the light of materials and conduct of the parties. Thus, finding the Suit Properties belonging to the Hindu undivided family of deceased Rathina Sabapathy Mudaliar, Income tax Appellate Tribunal confirmed the order of the Appellate Controller of Estate Duty.
35. The above finding of the Income Tax Appellate Tribunal is to be a matter reckoned with though not finding. My finding that the Suit Property being Hindu joint family property does not proceed merely from the additional documents received in this Appeal as Exs.B-10 and B-11. Those documents only fortify the conclusion arrived at from the documents and materials already placed before the trial court. The joint family character of the properties is well established. Therefore, in my view, the finding of the Trial Court that the Suit Properties are the self-acquisition of Ratnasabapathy Mudaliar cannot be sustained and is to be reversed.
36. Applicability of Tamil Nadu Amendment Act to Hindu Succession Act:
Rathina Sabapathy Mudaliar died on 18.07.1974. Tamil Nadu Amendment Act to Hindu Succession Act came into force on 18.01.1990. The 2 nd Defendant Swathanthira is the unmarried daughter of Rathina Sabapathy Mudaliar. By virtue of the Amendment Act, D2 claims to be the coparcener and she claims 1/3rd share along with D1 Ramachandran. Thus, the case of the Defendants is that Plaintiff is entitled to only 1/12 th share (1/3 x 1/4). This contention does not merit acceptance. Tamil Nadu Amendment Act came into force on 18.01.1990. The Act is prospective. Right of Swathanthira (D2) got fixed even on the date of death of Rathina Sabapathy Mudaliar in 1974, on which date the Tamil Nadu Amendment Act was not in force. Therefore, on the date and when the right of Partition and the coparcenary Property opened i.e.on the date of death of Rathina Sabapathy Mudaliar on 18.07.1974, D2 was entitled to only 1/8th share. The provisions of the Tamil Nadu Amendment Act cannot be applied retrospectively. The contention raised by D2 in the Cross Objection claiming to be the coparcener that by virtue of Tamil Nadu Amendment Act, she is entitled to 5/12 share (1/3 + 1/12 ) cannot be sustained.
37. Shares:-
For the foregoing reasons, I find that the Suit Property is the coparcenary property / Hindu joint family property of Rathina Sabapathy Mudaliar and D1 Ramachandran. D1 Ramachandran being a coparcener gets interest by birth in the coparcenary property. Thus D1 Ramachandran has acquired 1/2 share in the family Properties and his father Rathina Sabapathy Mudaliar being entitled to only 1/2 share. From out of 1/2 share of Rathina Sabapathy Mudaliar, Plaintiff is entitled to 1/8 share (1/2 x 1/4 ). While so, the trial court erred in concluding that the Plaintiff is entitled to 1/4th share. Therefore, the share of the Plaintiff is to be modified and the Cross Objection filed by the Defendants is to be allowed.
38. Section 23 of Hindu Succession Act:
Under Section 23 of the Hindu Succession Act, married daughter has no right of residence in the family dwelling house. Though the trial court has found that the Plaintiff is entitled to 1/4th share in 'A' Schedule Property, applying Section 23 of Hindu Succession Act, trial court has postponed the division of dwelling house - A Schedule house in Mandhaveli. Section 23 is a special provision dealing with the partition of a dwelling house and the right of the male and female heirs of the intestate therein. There can be no doubt that a female heir specified in Class I of the Schedule to the Act inherits a share in a dwelling house absolutely. But, Section 23 postpones the right of such a female heir to claim partition of the dwelling house until the male heirs choose to divide their respective shares therein.
39. The Appeal A.S.69/2003 is preferred on the only ground of assailing such deferring of the Partition under Section 23 of Hindu Succession Act. The learned counsel for the Appellant / Plaintiff has submitted that the trial court was not right in invoking Section 23. It is the contention of the Plaintiff that Rathina Sabapathy Mudaliar being survived by only one male heir and there are other female heirs, if Section 23 is to be applied, there is no possibility of the single male heir, viz., D1, choosing to divide the Property. It is further submitted that the right of Plaintiff to have Partition in 'A' Schedule Property cannot be postponed applying Sec.23 of Hindu Succession Act.
40. Countering the arguments of the Plaintiff, onbehalf of the Defendants, it is submitted that even if there is only one male heir, the female heir cannot claim partition of the residential house. Reliance is placed upon AIR 1981 MADRAS 62 and AIR 1996 SC 1826. Holding that Section 23 applies even if intestate leaves behind single male heir, in AIR 1996 SC 1826, the Supreme Court has held thus:-
"Section 23 applies and prohibits partition of dwelling house of the deceased Hindu male or female intestate, who left surviving sole male heir and female heir/heirs and the right to claim partition by female heir is kept in abeyance and deferred during the life of the male heir or till he partitions or ceases to occupy and enjoy it or lets it out or till at a partition action, equities are worked out".
41. Whether right of Plaintiff to claim Partition is to be deferred in view of Section 23 need not be gone into detail in view of the subsequent change of events. After the Suit, D1 Ramachandran died on 3 0.10.2000. With the death of single male heir, the obstacle of the Plaintiff in claiming the Partition under Section 23 is removed. Since there are only female heirs, right of Plaintiff to claim division of the residential house - 'A' Schedule Property cannot be postponed any further. Therefore, this Appeal A.S.No.69/2003 is to be allowed.
42. The trial court has not well appreciated the evidence and erred in omitting to draw inferences. The findings and reasonings of the trial court are not based upon the materials on record. Since the conclusion of the trial court finding the Suit Properties as the self acquired Properties of Rathina Sabapathy Mudaliar and allotting 1/4th share suffers from serious and substantial error, the same is to be reversed allowing the Cross Objection. It is further held that with the death of D1, the right of Plaintiff in claiming 'A' Schedule- residential house cannot be postponed and the Appeal A.S.69/2003 is to be allowed.
43. Cross Objection:- Therefore, the Cross Objection is allowed modifying the judgment and decree of VII Additional Judge, City Civil Court in O.S.3053/1998 dated 24.04.2002. It is held that the Plaintiff is entitled to 1/8th share and the judgment and decree of the trial court is modified accordingly.
44. A.S.No.69/2003:- The Order of the VII Additional Judge, City Civil Court in O.S.3053/1998 dated 24.04.2002 directing postponing of the Partition of 'A' Schedule Property is reversed and this Appeal is partly allowed subject to the modification of the shares in the Cross Objection.
In view of the relationship of the parties, there is no order as to costs in both matters.
Index: Yes.
Internet: Yes List of documents received as additional evidence as per the order in CMP.No.10477/2003 (filed under Or.41 R.27 CPC).
Ex.B-10/01.03.1972 Mortgage Deed executed by K.Rathina Sabapathy Mudaliar & Ramachandran to T.Vajravelu.
Ex.B-11/25.05.1979 Certified copy of Income Tax Appellate Tribunal, Madras.
gl To The Registrar, City Civil Court, Madras.