Kerala High Court
Dharmambal vs Lakshmi Ammal on 19 June, 2002
Equivalent citations: AIR 2003 (NOC) 117 (KER), 2002 A I H C 3399, (2002) 2 KER LJ 5, (2002) 2 KER LT 843
JUDGMENT R. Bhaskaran, J.
1. This second appeal is filed by the 4th plaintiff in a suit for partition. The question for consideration in the second appeal is with regard to the shares in the plaint schedule property to which the parties are entitled. The facts are not in dispute. The parties are governed by the Hindu Mitakshara law. Sankaranarayana Iyer was the common ancestor. Gopala Iyer and first defendant were his children. Plaintiffs are the children of Gopala Iyer. Defendants 2 to 7 are the wife and children of the first defendant. Gopala Iyer died on 24.11.1978. The suit was filed in 1984 for partition of the 1/2 rights of Gopala Iyer in the co-parcenary property by the legal heirs of Gopala Iyer. The trial court decreed the suit. The defendants had contended that the plaintiffs right if any was barred by adverse possession. That contention was found against and it was confirmed by the lower appellate court. The lower appellate court earlier allowed the appeal and remanded the case to consider the question of shares to which the parties are entitled. After remand, the trial court again decreed the suit for 1/2 share to the plaintiffs. In appeal, the lower appellate court has reversed the judgment and decree and directed that the plaintiffs are entitled to only 1/4th share in the plaint schedule property.
2. The learned counsel appearing for the appellant submitted that though the children of Gopala Iyer and Neelakanta Iyer are also members of the coparcenary when a division is to take effect it should be on per stirpes principle. She relied on Mulla's Principles of Hindu Law, Page 440, 15th Edition, wherein it is stated that when each branch takes per stripes (that is, according to the stock) as regards every other branch, but the members of each branch take per capita as regard each other. This rule applies equally whether the sons are all by the same wife or by different wives. Illustrations given at page 441 reads as follows:
(a) A dies leaves a son B, two grandsons C1 and C2, three great-grandsons F1, F2 and F3 and one great-great-grandson K. A (dead) _________________|____________________ | | | | B c(dead) D(dead) E(dead) | | | ____________ F (dead) G(dead) | | C1 C2 | | | H(dead) _______________ K | | | F1 F2 F3 Here there are four branches of the joint family represented respectively by the four sons of A and their descendants. E's branch takes nothing as K, the only surviving member of that branch, is outside the limits of the coparcenary, being beyond the fourth degree of descent from A, the common ancestor. The joint property will therefore be divided per stirpes into three parts corresponding to the remaining three branches, each branch taking 1/3. The result is that B will take 1/3, C1 and C2 will take the one-third share of C equally between them, each taking 1/2 of 1/3; i.e., 1/6 and F1, F2 and F3 will take the one-third share of D equally between them each taking 1/3 of 1/3, i.e. 1/19.
It is therefore contended that the reasoning of the lower appellate court that all the sons of the first appellant had acquired the right by birth and therefore each of them are entitled to 1/8 share in the coparcenary property is incorrect. Though it is not disputed that sons of Neelakanta Iyer are also the members of the coparcenary they can take equal share out of 1/2 of the plaint schedule property as members of the branch of Neelakanta Iyer. The lower appellate court relied on the Kerala Joint Hindu Family System (Abolition) Act, 1975, as per which it is to be taken that there has been a partition as on the date of coming into force of the Act and therefore when Gopala Iyer died in 1978 he had only 1/8 share and the first defendant arid other male children are also entitled to one share each. The learned counsel appearing for the appellant brought to my notice Section 4(2) of the Kerala Joint Hindu Family System (Abolition) Act, 1975. Section 4 of the Act reads as follows:
4. Joint tenancy to be replaced by tenancy in common:-
(1) All members of an undivided Hindu family governed by the Mitakshara law holding any coparcenary property on the day this Act comes into force shall with effect from that day, be deemed to hold it as tenants-in-common as if a partition had taken place among all the members of that undivided Hindu family as respects such property and as if each one of them is holding his or her share separately as full owner thereof:
Provided that nothing in this sub-section shall affect the right to maintenance or the right to marriage or funeral expenses out of the coparcenary property or the right to residence, if any, of the members of an undivided Hindu family, other than persons who have become entitled to hold their shares separately, and any such right can be enforced as if this Act had not been passed.
(2) All members of a joint Hindu family, other than an undivided Hindu family referred to in Sub-section (1), holding any joint family property on the day this Act comes into force, shall, with effect from that day be deemed to hold it as tenants-in-common, as if a partition of such property per capita had taken place among all the members of the family living on the day aforesaid, whether such members were entitled to claim such partition or not under the law applicable to them, and as if each one of the members is holding his or her share separately as full owner thereof."
Sub-section (2) of Section 4 excludes undivided Hindu family referred to in Sub-section (1). Therefore, even though it is stated that all the members of a joint Hindu family holding joint family property on the day of the coming into force of the Act shall hold it as tenants-in-common as if the partition has taken place among the members of the family living on that date aforesaid, it is not stated that their shares will be on per capita basis. Sub-section (2) is not applicable to undivided Hindu family. This question had arisen indirectly in a Full Bench decision of this Court in Indira Devi v. Dy. Commissioner, AIT & ST (1998 (1) KLT 634 (FB)). It is stated in that judgment that a reference to the statement of objects and reasons attached to the bill of Kerala Joint Hindu Family System (Abolition) Act would also show that the Legislature never intended to include under Sub-section (2) of Section 4 an undivided Hindu family governed by Mitakshara law. Thereafter the property has to be partitioned ignoring Sub-section (2) of Section 4. If that be so, as per the Hindu law it is per stirpes division that is possible. First defendant and Gopala Iyer represented two branches and by virtue of the provisions of the Hindu Succession Act and Gopala Iyer having died in 1978, the plaintiffs are entitled to 1/2 right in the plaint schedule property which was available for Gopala Iyer in 1978. In that view of the matter, the conclusion of the trial court that the plaintiffs are entitled to 1/2 right and the first defendant and his son are entitled to the other 1/2 is to be restored. The questions of law raised in the memorandum of second appeal are as follows:
1. Whether the lower appellate court was justified in coming to the conclusion that appellant and respondents 8 to 12 will be entitled only to one by four share over the properties?
2. In the absence of any evidence much less pleadings by respondents 1 to 7 and 13 regarding the number of sons of deceased Neelakanta Iyer and lower appellate court justified in restricting the share of the appellant and respondents 8 to 12?
3. Deceased Neelakanta Iyer and deceased Gopala Iyer being brothers, succession to the family properties opened at the time of death of Sankaranarayana Iyer, father of Neelakanta Iyer and Gopala Iyer. Gopala Iyer therefore, would be entitled to one half of the schedule properties. In the circumstances, therefore, was the lower appellate court justified in coming to the conclusion that the appellant and respondents 8 to 12 entitled to only one fourth share over the properties?
4. On the admitted case that the schedule properties are ancestral properties of the joint family was not the lower appellant court in error in determining the shares of the parties over the properties as on the date of death of Gopala Iyer? Appellants and respondents 8 to 12 representing the branch of Gopala Iyer are entitled to the share of Gopala Iyer over the properties. Succession to the properties of Gopala Iyer and Neelakanta Iyer ppened on the death of the father Sankaranarayana Iyer in 1930. If so, Gopala Iyer is entitled to one half share over the properties. In the circumstances therefore, was the court below justified in coming to the conclusion that appellant and respondents 8 to 12 are entitled only to one by four share over the properties.
In view of the above discussion made in the preceding paragraphs, these questions of law are to be answered in favour of the appellant and the supporting respondents.
In the result, the second appeal is allowed and the judgment and decree of the lower appellate court are set aside and those of the trial court are restored. There will be no order as to costs.