Madras High Court
Gurusamy Naicker And Others vs G. Jayaraman And Others on 25 April, 1995
Equivalent citations: AIR1996MAD212, (1995)IIMLJ549
ORDER Abdul Hadi, J.
1. Defendants 1 to 7, 11 and 12 are the appellants in this first appeal against the preliminary decree for partition of the plaintiff 1st respondent's /10th share in the plaint scheduled properties (as against the plaintiffs claim for 1/9(h share thereof). The . Court below has also directed that the family debts has to be discharged out of the said properties and that the 1st defendant has to account for the profits from the said properties from 8-12-1981, the date of the suit notice.
2. There is no dispute regarding the following relationship between the parties: The 1st defendant is the father. He has two wives, the 1 st wife being 9th defendant and the 2nd wife being 10th defendant. Both the wives are sisters. Through 9th defendant, the 1st defendant has six sons, the plaintiff, defendants 2 to 6, and 2 daughters, defendants 1 and 12. Through 10th defendant, the 1st defendant has two sons, viz., defendants 7 and 8 and one daughter, viz., 13th defendant. Thus, on the whole the 1 st defendant has eight sons and three daughters. The suit properties are described in plaint A to F schedules. But, of these, D to F schedule properties are movable properties and there was no separate argument by either side regarding the same. A to C schedule properties are immovable properties. Defendants 8 to 10 and 13 are respondents 2 to 5 respectively in this appeal.
3. In the light of the argument, advanced before us, the material plaint allegations are briefly as follows: The Plaintiff and defendants 1 to 8 are coparceners of the undivided Hindu joint family and the 1st defendant is the Kartha thereof. The suit properties are joint family properties. 22 acres of land comprised in S. Nos. 807/1, 807/ 2, 808/1, & 808/2 with large irrigation wells (A schedule Items 1 to 3) and palacial houses described as Items 5 and 6 in A schedule are the ancestral joint family properties and the 1st defendant, as kartha, has been managing them. They are very fertile and income yielding properties. The 1st defendant has been realising enormous income therefrom. For the purpose of avoiding tax laws and Land Reforms Act, the subsequent acquisitions were made in the names of plaintiff and defendants 1, 2 and 9, though the acquisitions were made from out of the income derived from the joint family properties and from out of the exertion of the members of the said family. Apart from the income from the joint family properties, none of the members of the family had any independent sources of income. The 9th defendant hails from a very poor family. She did not bring any jewels or money as stridhana. R schedule properties were purchased in the name of the 2nd defendant. The properties purchased in the name of 9th defendant are set out in C schedule. B and C schedule properties were treated only as joint family properties. The family of the plaintiff and defendants is a rich agricultural family in the, locality. Except the loan amounts borrowed from the Co-operative Society, the family does not owe any amounts. The plaintiff is the eldest son and he studied upto 9th standard. The plaintiff contributed his labour for the agricultural operations of the family properties. In the year 1980 misunderstanding arose between the plaintiff and the 1st defendant and due to hostile treatment of the 1st defendant, the plaintiff was driven to the necessity of living in another village with his wife and children. Even thereafter, the 1st defendant was giving troubles to the plaintiff. The 1st defendant flatly refused to effect partition of the family porpcrties. Forestalling the plaintiff's legal action, the 1st defendant brought aboutls fraudelant document, purporting to be a deed of family partition. The unilateral partition alleged to have been effected under the said document is thoroughly unfair and unjust and the said document is void for the following reasons:--The said document has left out valuable movable and immovable properties and the family including the abovesaid palacial houses belonging to the family. Threfore, the alleged partition is void on the ground of partial partition. Some of the properties in Schedule A have not only value as agricultural lands, but also as potential house sites. S. Nos. 807/1, 807/2, 808/1, and 808/2A are cultivated as single unit. Though there are number of wells in the lands belonging to the family, the wells in Serial No. 790, 808/1, and 808/2, alone have sufficient supply of water. The wells in Serial No.807/1, and another well in S. No. 808/1 have no water and they are not in use and they are abandoned wells. The lands comprised in S. No. 807/1 is irrigated only with the water in the well situated in S. No. 790 and not in Serial No. 808/1 and for that purpose necessary underground pipelines have been laid. While so, the 1st defendant has purported to allot 3.52 acres of lands in S. No. 807/1 with "well right" in the abovesaid abandoned well. The plaintiff is not allotted any right in the well situated in S. Nos. 790,801/1 and 808/2. This sort of division will render the lands allotted to the plaintiff only as ordinary dry lands, whereas the other lands are irrigated garden lands. The value of the lands with irrigation facilities is at least four times than the value of the lands without irrigation facilities. On the east and north of the land in Serial No. 808/ 2A, very many residential and non residential building have sprung up. So, the lands adjacent to the buildings have very high market value, whereas the lands allotted to the plaintiff have no potential value as building site in the near future. The 1st defendant had made it impossible for the plaintiff to live in the family house. In the abovesaid alleged partition no provision has been made for joint family debt borrowed in the name of the plaintiff to the extent of Rs. 3,915/- under three loans from Sengamalanachairpuram Agriculral Service Co-operative Society. The said loans were utilised for the joint family. As on 13-5-1982, the said principla amount of Rs. 3.915,/- and interest thereon to the extent of Rs. 3,749/-are due on the said three loans. The 1st defendant has fabricated the abovesaid partition deed. But the same was not given effect to and acted upon. There is no actual division by metes and bounds and there is no separate enjoyment. To defraud the plaintiff, the 1st defendant has fraudulently brought about a gift deed dated 29-4-1981 in favour of the defendants 11 to 13 in respect of B schedule properties. The 2nd defendant, who is a puppet in the hands of the 1st defendant has also been made a party to the said gift deed, which is only sham and nominal and brought about fraudulently, solely to give a colour of reality to the abovesaid fraudulent partition deed. The properties covered under the said gift deed are also joint family properties and hence the said gift is void. An extent of 1.67 acres is S. No. 801/1 and 3.01 acres in S. No. 808/2A and 3.32 acres in Serial No. 807 /1 were purchased in the name of the plaintiff with joint family funds. At the time of the marriage alliance of the plaintiff, the 1st defendant agreed to allot the said properties to the plaintiff. Though the plaintiff is in equity entitled to ask for allotment of the said properties to his share, he is not insisting for such allotment and he is willing for equitable division of his share in the joint family properties. The 1st defendant is realising the entire income from the properties. Though he is liable to account for the said income from the year 1980, the plaintiff is restricting his claim for accounting from 8-12-1981, the date of issue of legal notice. The average annual income from the joint family properties will be far less than Rs. 1,50,000/-. The plaintiff came to know of the abovesaid alleged partition deed dated 24-11-1980, on 27-10-1981. Likewise, he came to know of the abovesaid gift deed dated 29-4-1981 on 26-11-1981. The plaintiff prayed for 1/9th share in the suit properties.
4. The material allegations in the written statement of the 1st defendant are briefly as follows: The suit properties are not joint family properties. On the date of the suit, there was no joint family. Serial No. 803/2 never belonged to the family of the 1st defendant. The correct Serial No. is 808/2A. Items 5 and 6 of A schedule are not palacial houses. The said Item 5 is an ancient building, not even fit for occupation. Item No. 6 was constructed recently about five years back, a portion of it is terraced and the remaining portion is with asbestos roofing. The 1st defendant was kartha only prior to the partition that was effected. The allegation that the ancestral properties are fertile, etc., is not correct. They were unfit for garden cultivation. Some of them have not even been cultivated. With great difficulty, the 1st defendant brought the said properties under cultivation. The 1st defendant was not realising enormous income as alleged. The income realised was just sufficientt to maintain the large family for improving the properties by bringing them under cultivation. No property was acquired for the purpose of escaping from tax law or the law relating to land reforms. At the time when the properties were sub-sequenily acquired, none of the members of joint family were capable of contributing their exertion for acquiring the properties. The acquisitions in the name of the plaintiff and defendants 1, 2 and 9 were not with the income of the family. The allegation that none of the members of the joint family had any independent source of income, is false. At the time of the marriage of the 9th defendant the family of the father of the 9th defendant was very well of. She brought jewels, cash and cattle. B schedule properties were purchased in the name of the 2nd defendant with the sale proceed of the said jewels. B and C schedule properties were purchased for the benefit of the family from the joint family resources. These properties were respectively treated as separated properties of defendants 2 and 9. The 1st defendant was serving as a constable and with the amount which he was able to save and from the amounts borrowed, he acquired properties in his name. Those properties are not joint family properties. It is denied that the co-operative loan was borrowed for evading tax laws. There are certain other loans borrowed by the 1st defendant for the purpose of purchase of properties. Out of the total extent of joint family properties, the plaintiff and the 1st defendant sold about 3 acres. Only about 16 acres of land could be brought into cultivation by the 1st defendant with his hard labour. The remaining extent is still fallow. The plaintiff did not contribute his labour for the agricultural operations of the family. The 1st defendant arranged for the separate living of the plaintiff and his wife, giving them necessary movables. But, without the knowledge the 1st defendant, the plaintiff took away all the said things given to him and went to live with his father-in-law, in a different village. The 1st defendant did not give any trouble to the plaintiff. The plaintiff never asked the 1st defendant to effect a partition. On the other hand, he attempted to alienate the properties purchased in his name by the 1st defendant, for the benefit of the family from out of the joint family funds. In these circumstances and also for the reasons mentioned in the partition deed, the 1st defendant effected the partition in respect of the joint family properties among himself and the other properties of the joint family under a registered partition deed in his capacity as kartha. The partition is just and equitable. The allegation that some properties have been left out in the abovesaid partition is not correct. The said deed is not valid on the ground of partial partition. The houses cannot be divided for convenient enjoyment and they are kept in common and the said fact is mentioned in the partition deed. B and C schedule properties are not available for partition. There is no turth in the allegation that A Schedule properties have not only value as agricultural lands, but also as potential house sites. The lands, in Serial Nos. 807/.1, 808/1 and 807/2A, 808/2A are not cultivated as a single unit. The southern portion thereof is lying fallow. The 1st defendant was able to bring the northern portion alone into cultivation. There arc three wellsjn the suit property. Two of them are fitted with electric motor and pumpset and in the well in Serial No. 807/1 an oil engine is fitted. The well in Serial Np. 807/1 is not an abandoned well. Serial No. 807/1 is not irrigated only with the water in the wells in Serial No. 790 and 808/1 and the well in Serial No. 790 is the separated property of the 1st defendant. Out of best intention, the 1st defendant had been irrigating the lands of joint family from that well. Such action will not confer any right claimed by the plaintiff. The allegation that the division of 3.52 acres in Serial No. 807/1 will render the lands allotted to the plaintiff oniy as ordinary dry land, is denied. The further contention that the lands in Serial No. 808/ 2A have a very high market value, is not correct. All the lands are abutting the main road and have the same potentiality. The plaintiff never demanded partition. There was no reason for any misunderstanding. The plaintiff had gone to live with his wife at the instance of his wife and father-in-law. It is their motive to get a large share for the plaintiff, so that they could sell them and keep the plaintiff under their control. The 1st defendant has acted fairly in dividing the properties. The loans borrowed from the cooperative Societies are not in the name of the plaintiffs. One was in the name of the 1st defendant on the security of the joint family properties, another was in the name of the plaintiff on the security of the joint family properties purchased in the name of the plaintiff, and the third was in the name of the 2nd defendant on the security of his private properties. The first two loans were for the benefit of the joint family. The third loan has been fully discharged by the 2nd defendant. The partition effected was given effect to. Mutation also was effected pursuant to the partition. The shares allotted to each member has been sub-divided according to the enjoyment. The attack made against the gift deed dated 29-4-1981 is also baseless. If is genuine and valid. The 1st defendant did not promise at the time of the plaintiffs marriage to allot the alleged properties to the plaintiff. The claim for accounting is baseless. The estimate of annual income at Rs. 1,50,000/- is also baseless;
5. Though the defendants 2, 5, 6 and 7 filed separate written statements, it can be said that they generally adopted the written statement of the 2nd defendant and there is no necessity to set out their pleadingrs separately.
6. In the written statement filed by 13th defendant in Sept. 1992, she seeks to claim right under Hindu Succession (Tamil Nadu Amendment) Act, 1989. But, in the reply statement filed thereafter, filed by the plaintiff, it is pleaded that since the plaintiff had issued a legal notice dated 8-12-1981 and has filed the suit for partition even in the year 1982, there had been severance of joint family status even before the abovesaid Amendment Act came into force and hence, the 13th defendant cannot claim any right against the said Act.
7. In the court- below, Exs. A.1 to A.33 were marked on the side of the plaintiff and plaintiff alone examined himself as P.W. 1. On the side of the defendants Exs. B.1 to B.113 were marked and defendants 2, 3 and 5 respectively examined themselves as D.Ws. 1, 2 and 3. The court below framed relevant issues and came to the following conclusions:--
(i) Ex. A.14 dated 24-11-1980, the above-said partition deed, is not just and valid and not binding on the plaintiff.
(ii) Such of their suit A Sch. properties purchased in the name of the 1st defendant, the suit B schedule properties purchased in the name of the 2nd defendant and the suit C Schedule properties purchased in the name of 9th defendant and all other suit properties are joint family properties. Ex. A 22, the settlement deed dated 29-4-1981 executed by defendants 1 and 2 in favour of defendants 11 to 13 (in respect of suit B Sch. and A Sch. Item 8) is not valid.
(iii) The suit debts are binding on the above-said joint family.
(iv) In view of the Section 6 of Hindu Succession (Amendment) Act, 1989, the 13th defendant, the only unmarried daughter on the relevant date, viz., 25-3-1989, is entitled to a share. (The other two daughters viz., defendants 11 and 12 were married earlier to the said date).
8. Accordingly since there are ten coparceners including the abovesaid 13th defendant, pursuant to the abovesaid Amendment Act, the Court below has granted 1/10th share to the plaintiff and passed preliminary decree for partition.
9. Learned Counsel for the appellant made the following submissions. The Court below erred in holding that Ex. A.14 is not just and valid and not binding on the plaintiff. There is no partial partition as alleged by the 1st respondent plaintiff, since the properties allowed to have been left out are properties exclusively belonging to the respective Vender members of the family, viz., defendants 2, 9 and 1. Particularly C Schedule properties standing in the name of 9th defendant are her own properties, she having purchased them under Exs. A.1 to A.8 sale deeds. Likewise in the light of the abovesaid submissions, he relied on several decisions, about which we shall presently see.
10. In the light of the arguments of learned Counsel for the appellants in this appeal, there is no dispute regarding Items 5 and 6 of suit A schedule properties since they are kept in common even under Ex. A.14. They are available for partition. Likewise part of the Item f of A schedule has been acquired by the Government under the Land Acquisition Act and there is no dispute that the plaintiff and other coparceners will have their respective shares therein.
11. Learned counsel for the 1st respondent-plaintiff made the following submissions: Ex. A. 14 partition deed has not been signed by the plaintiff and it is only signed by the 1st defendant. The partition by metes and bounds said to have been effected thereby is not just, or fair, since the property allotted to the plaintiff therein is much less in value than the property allotted to each of the other coparcerners. The properties standing in the name of defendants 1, 2 and 9 are also joint family properties. The gift in favour of defendants 11 to 13 under Ex. A.22 is also not valid under Hindu Law. He also relied on certain decisions, about which also we shall presently consider.
12. We have considered the rival submissions in the light of the pleadings, evidence and the decisions cited. Before considering the validity of Ex. A. 14 partition deed, we shall first deal with the C Schedule properties, of an extent of 26.98 acres, which were purchased in the name of 9th defendant and B schedule properties of an extent of 2.80 acres, which were purchased in the name of 2nd defendant and also the properties standing in the name of the 1st defendant, which are some of the items in suit A Schedule and see whether they are exclusive properties of defendants 9, 2 and 1 respectively. (There is no necessity to consider about the properties stating in the name of the plaintiff, because the plaintiff himself has admitted that they could be treated as joint family properties and accordingly divided). In so far as C schedule properties are concerned, it has to be seen whether they could be taken as 9th defendant's exclusive properties and not the properties of the family of which the 1st defendant is the kartha. These properties have been purchased under Exs. Al and A2, both dated 26-10-1988, Ex. A.3 dated 4-11-1968, Ex. A.4 dated 15-11-1968, Ex. A.5 dated 9-12-1968, Ex, A.6 dated 20-10-1969, Ex. A.7 dated 20-11-1969 and Ex. A.8 dated 12-7-1971. First of all, it must be noted that in order to prove these sale deeds from third parties in favour of 9th defendant, she (9th defendant) has not been examined. Further, even assuming that the 1st defendant, the husband of 9th defendant, was aware of these sales when they took place in 1968 to 1971, even he (1st defendant) has not been examined. Likewise, in respect of the properties purchased in the name of 1st defendant also, the same reasoning could be advanced since the 1st defendant has not been examined. In fact, the non examination of defendants 1 and 9, the elderly members of the family would very much go against the case of the appellants. On the side of the defendants-appellants only defendants 2, 3 and 5 have been examined as D.Ws. 1, 2 and 3 respectively. There is no other independent witness at all. Further, even with reference to the abovesaid B Schedule properties, which are standing in the name of 2nd defendant, though they stand in the name of 2nd defendant, they are alleged to have been gifted away under Ex. A.22 dated 29-4-1981, in favour of the above referred to three daughters in the family, viz., defendants 11 to 13 and the said Ex. A.22 has been executed not only by the 2nd defendant, but also by the 1st defendant and the arguments of learned Counsel for the appellants is that the said gift under Ex. A.22 is valid since only a 'reasonable portion' of the family property has been gifted away thereby to the abovesaid daughters of the family. This argument itself shows that those properties are only joint family properties of the abovesaid family. (It may incidentally be noted here that Ex. A.22 not only consists of the abovesaid entire B Schedule properties, but also part of Item No. 8 of A Schedule properties). So, it has only to be seen whether the abovesaid gift under Ex, A.22 is valid under Hindu Law on the footing that the properties given therein as gift are only joint family properties, belonging to the abovesaid family, of which the 1st defendant is the kartha. In fact, there was no argument at all by learned counsel for the appellants that the abovesaid B Schedule properties standing in the name of 2nd defendant are his own separate properties, nor was there any argument before us that any property standing in the name of 1st defendant is his own separate property. Such an argument has been made only with reference to C Schedule properties, saying that they are the exclusive properties of 9th defendant and not the properties of the abovesaid family. With reference to these C Schedule properties, we have already pointed out that there is no even proper proof of the abovesaid "Exs. A.1 to A.8 sale deeds in favour of the 9th defendant. No doubt, the argument of learned counsel for the, appellants in this regard is that there is a presumption that the properties standing in the name of a female member of the family (9th defendant) are her own properties and not that of the family in which she is a member and that it is for the plaintiff to prove that there was surplus income from the admitted family properties and from out of which, the said properties standing in the name of 9th defendant could have been purchased by the 1st defendant, the kartha. According to the said learned counsel, there is no evidence regarding such surplus income and so, the presumption is not rebutted and the Court should held that it is only the separate property of 9th defendant, and not the property of the abovesaid family. But, this contention has no merit, in the light of the following features.
12A. We have already noted the effect of non examination of 9th defendant or the 1st defendant with reference to the sale deeds, which are standing in the name of the 9th defendant. That apart, we must also point out that the best evidence regarding those sale deeds could come only from defendants 9 and 1, getting into the witness box. When such an evidence is withheld, adverse inference also could be drawn against the 9th defendant and the Court could hold that those properties are only properties of the advovesaid joint family. (Vide Gopal Krishnaji v. Mohamed Haji Eatif, ).
12B. That apart, even regarding the income from the family nucleus. The evidence of P.W. 1 is as follows:--
(Vernacular matter omitted--Ed.) It should be noted that on this evidence given by P.W. 1 there is no cross examination at all. No doubt, learned Counsel for the appellants points out that in the plaint, the plaintiff has only stated that the abovesaid income from the family properties is Rs. 1,50,000/- and that only a further exaggerated version has been given by P.W. 1 in saying that the said income is Rs. 2 lakhs. But, it must be first of all noted that in the plaint, the allegation only runs thus :
"The average annual income from the joint family properties will be not less than Rs. 1,50,000/-."
When the plaintiff, as P.W. 1, has chosen to depose that the said income is upto Rs. 2 lakhs, the appellants could have cross-examined P.W. 1 regarding the same. But, they have not done so. Anyway, even assuming that the income was only Rs. 1,50,000/- it was indeed a substantial sum and the evidence is that, out of such income, the defendant was purchasing properties initially in the name of 9th defendant under Exs. A.1 to A.8 (that is, in the year 1968 to 1971). Further, P. W. 1 has also deposed thus :--
(Vernacular matter omitted--Ed.) As against this version of P. W. 1. It is the 9th defendant who should have entered into the vvithness box, if really, she wanted to dispute the evidence of the plaintiff in this regard. But, as we have already noted, 9th defendant has not chosen to do so. In fact 9th defendant lias not chosen to cross examine P. W. 1. Even the cross examination on behalf of the 1st defendant did not at all advert to the above-said portion of the evidence given by P.W. 1 slating that out of the above said income from the family properties, the above said C schedule properties were purchased in the name of 9th defendant. Learned Counsel for the appellants also could not point out any evidence regarding any independent income of 9th defendant. In the above circumstance, it is clear that C Schedule properties are also joint family properties, as has been held by the Court below. In this connection, we may also point ouf the following observation in Kri-shnan v. Ramaswami, (1984) 2 Mad LJ 133, which would also support our abovesaid conclusion:--
"Two things emerge from the evidence, namely, that Mari Mudaliar was the head of the family and second, the family was possessed of certain items of properties. Obiv-ously,''' those properties must have been yielding income as otherwise, it would not have been possible for Mari Mudaliar to maintain a family consisf ing of seven or eight members. Therefore, even though the respondents have not proved what was the income derived from the joint family property and what amount would have remained as surplus after the expenses of the joint family had been met, there is a high degree of possibility that there must have been some surplus and that the properties must have been yielding adequate income for supporting all the members of the family. In such circumstances, there is certainly scope for inferring that there should have been a certain amount of surplus and from out of the surplus, the suit property might have been purchased."
13. Then, coming to the question of the above referred to gift deed under F.x. A.22, no doubt, law is that a 'reasonable portion' of joint family properties could be gifted by the kartha of a family in favour of a daughter or daughters in the family. In this connection, no doubt, learned Counsel for the appellants points out that what has been gifted under Ex. A.22 is only about six acres and he also relied on Baswara Iyer v. Venkatasubramania Iyer, , confirming the Division Bench Judgment of this Court in: (AIR 1966 Venkatasubramania lyer v. Easwara Iyer, (1966) 1 Mad EJ 471 Madras 266). He also drew our attention to Guramma v. Maliappa, AIR 1964 SC 5l0, Devchand C. Shah v. Commr. of Expenditure-Tax, Mysore, (1970) 78 ITR 534 (Mysore) and Commr. of Gift-tax v. Bandi Subba Rao, (1987) 167 ITK 66 : (1988 Tax LR 178) (Andh Pra). There is no quasrrel about the legal position in this regard. The said legal position has also been well summarised in (supra) in paragraph 18, a portion of which runs as follows:--
"The father or his representative can make a valid gift, by way of reasonable provision for the maintenance of the daughter, regard being had to the financial and other relevant circumstances of the family. By custom or by convenience, such gifts are made at the time of marriage, but the right of the father or his representative to make such a gift is not confined to the marriage occasion. It is a normal (moral?) obligation and it continues to subsist till it is discharged. Marriage is only a customary occasion for such a gift. But the obligation can be discharged at any time either during the lifetime of the father or thereafter. It is not possible to lay down a hard and fast rule, prescribing the quantila tive limits of such a gift as that would_depend on the the facls_of each case and it can_only be decided by Courts, regard being to the overall picture of the extent of the family estate, the number of daughters to be provided for and other paramount charges and other similar circumstances."
14. But, in the present case, there is no pita at all by the appellants that the abovesaid gift under Ex. A.22 was only a reasonable portion out of the joint family properties as would satisfy the abovesaid observation of the Supreme Court in AIR 1964 SC 519 (supra). No doubt, learned counsel for appellants contend that it is for the plaintiff to have pleaded that what gifted under Ex. A.22 was not such a reasonable portion. We are unable to accept this contention. When the plea of the plaintiff is that the abovesaid gift itself is not valid in law, the properties gifted being joint family properties, it is for the defendants, who want to allege that the said gift was valid, to plead that though the properties were joint family properties, the gift was valid, because it was only a reasonable portion made by the karthain favour of the daughters viz., defendants 11 to 13 and that hence under Hindu Law, it is valid. But, there is no such plea at all, as we have already pointed out. In fact, there is also no evidence that the properties gifted were only such a reasonable portion. In the above circumstances, it cannot be held that Ex. A.22 is valid and binding on the plaintiff.
15. No doubt, learned Counsel for the appellants also argued that even though Ex. A. 14 partition has come into being on 24-11-1980 itself and even though in view of the said Ex. A.14, severance in status has come into effect in the family, the abovesaid gift under Ex. A.22 by the 1st defendant could be upheld in view of the decision in Bhagwant v. Digambar, . No doubt, we find the following observation in :--
"The character of any joint family property does not change with the severance of the status of the joint family and a joint family property continues to retain its joint family character so long as the joint family property is in existance and is not partitioned amongs the co-sharers."
But, the same learned Counsel was fair enough to point out that the observations of the Supreme Court in two other decisions, viz., Girja Nandini Devi v. Bijendra Nara.in Choudhry, and Smt. Krishnabai Ganpatrao Deshmukh v. Appasaheb Tuljaramrao Nim-balkar, AIR 1979 SC 1880 are to the effect that once severance in status takes place, the character of the properly does change. But, there is no necessity to go into this question, since even assuming that a gift could be made, it would be of the above referred to reasonable portion of the family properties as laid down in several Supreme Court and other decisions. With reference to the said aspect of reasonable portion, we have already pointed out that there is no plea by the appellants in the written statement that Ex. A.22 gift is valid, because the property gifted therein is only such a reasonable portion of the entire joint family properties. The net result is, the finding of the Court below regarding Ex. A.22 is also confirmed by us.
16. Then, coming to the question whether the above referred to Ex. A. 14 partition deed is valid and binding on the plaintiff, there again, we have to confirm the conclusion reached by the Court below and hold that it is not valid and binding on the plaintiff for the following reasons : No doubt in Ex. A.14, only the properties standing in the name of the 9th defendant, a female, do not figure as subject matter of partition thereunder, and even the properties standing in the name of male coparceners like 1st defendant-plaintiff and the 2nd defendant are included as its subject matter. However the properties gifted under Ex. A.22 in favour of defendants 11 to 13 have also been excluded. However, as pointed out by learned Counsel for the appellants, the power, is there on the kartha of the family, to effect such partition even without the consent of the other coparceners (Vide Mulla's Hindu Law, Sixteen th Edition, Paragraph 323 at page 379 and Apoorva Shantilal Shah v. I.T. Commr., Gujarat, AIR 1983 PC 409 and Meyyappa v. I.T. Commr., . But, it must be noted that if the said power exercised by the father (1st defendant) results in unequal and unfair partition, it could be set aside by the affected coparcener. In fact, in this connection, the following observation in (supra) is significant (at p. 508 of AIR) :
"Under the Mitakshara, law the father has the undoubted right and privilege of effecting a partition between himseif and his sons, whether they are majors or minors, without their consent. He may divide the properties physically or may only bring about a division in status. This division may be between himself and his sons or even between the sons inter se. The partition so made however, must be fair and equal. See Kandaswami v. Doraiswami Aiyar (1878-80) ILR 2 Mad 317 and Venkatapathi Raju v. Venkatanarasimha Raju, ILR (1937) Mad 1 : AIR 1936 PC 264. (Mayne's Hindu Law, 11th Edn. !950, pp. 547 and 548)..... If the partition is unequal and unfair it is open to the sons if they are majors, to repudiate the partition....."
17. Even in (supra) the following similar observation has been made:--
"We wish to make it clear that this right of the father to effect a partial partition of joint family properties between himself and his minor sons, whether in exercise of his superior right as father or in exercise of the right as patria potestas has necessarily to be exercised bona fide by the father and is subject to the right to the sons to challenge the partition if the partition is not fair and just."
(empahsis supplied)
18. In this connection, let us now see the evidence to find out whether the abovesaid Ex. A. 14 partition is just and fair. First of all, since we have already held that the suit B and C schedule properties are properties available for partition, the alleged Ex. A. 14 partition can only be termed as partial partition. But, as has been also held in (supra) such partial partitions effected by the Kartha of the family cannot be, in absolute terms, branded as not valid. In other words, if they are otherwise just and fair, they would be valid partitions. So, in essence, we have now to see whether the alleged Ex. A.14 partition is a just and fair one and hence would bind the plaintiff. No doubt, P. W. 1 the plaintiff alone has been examined in this case and there is no other documentary proof or independent oral evidence to substantiate the claim of the plaintiff that Fx. A. 14, is unfair and unjust to him. In fact, learned Counsel for the appellants also submits that there was not even a Commissioner appointed to value the relevant properties of the family including the property allotted to the plaintiff under Ex. A. 14, so that, it could be objectively found out whether any unfair treatment has been meted out to the plaintiff under Ex. A. 14 taking into account the relevant values of the properties involved. He even points out that there is not even a sketch showing the location of the relevant properties including the properties allotted to the plaintiff under Ex. A. 14. But, learned Counsel for the plaintiff 1st respondent submits that there is no cross examination at all regarding the vital evidence given by P.W. 1, the plaintiff and hence, it is clear that there is an unjust and unfair treatment meted out to the plaintiff under Ex. A.14. That apart, he also points out that even a portion of the property allotted under Ex. A. 14, to the plaintiff has been acquired by the Government under the Land Acquisition Act.
19. We shall now consider these rival submissions on the above aspect. No doubt, there is. some arguable point in what has been submitted by learned counsel for the appellants as noted above. But the submissions of learned Counsel for the 1st respondent is very much appealing in view of the following features and we have to necessarily hold that the partition under Ex. A. 14 is not fair or just to the plaintiff and hence Ex. A. 14 has to be held as not binding on the plaintiff. The oral evidence of P.W. 1, with reference to major portion of which there is no cross examination, is as follows:--
(Vernacular matter omitted -Ed.) Thus, the deposition in essence, is that the plaintiff has been allotted under Ex. A. 14, 3.52 acres (no doubt similar extents of 3.52 acres have been given to the other coparencers also), but the portion so allotted to the plaintiff has no immediate potential value as house sites, as that of the lands allotted to the other coparceners and that hence the latter have much value than the former. First of all, learned Counsel for the appellants could not point out any cross examination on this aspect of the deposition. Nextly, the above-said deposition also points out that the properties allotted to the plaintiff under Ex. A.14, viz. in S. No. 807/1 has only a dried up well (Vernacular matter omitted, Ed.) and the plaintiff has been asked to take 1/3rd right therein, but that for the other sons of the family, there is direction in Ex. A. 14 that they could take water for irrigation from good wells (Vernacular matter omitted, Ed.). P.W. 1 also deposes that the land which has got irrigational facility will be four times of more value. The inference is that the land allotted to him under Ex. A. 14 has no such irrigation facility and hence its value is 1/4th of the other lands, which has got good irrigation facility. On this aspect also learned counsel for the appellants could not point out anything in cross examination.
20. Further, there is no evidence also to show that after executing Ex. A. 14, the 1st defendant communicated the same to the plaintiff. First of all, there is no such allegation even in the written statement of the 1st defendant. That apart, as already pointed, the 1st defendant has also not entered into the witness box to depose inter alia that he has communicated. Ex. A. 14 partition to the plaintiff. That apart, the evidence of P.W. 1 in this regard is as follows:--
(Vernacular matter omitted--Ed.) P.W. 1 also deposed thus:--
**(Vernaeular matter omitted--Ed.) From all this, we could infer that though P.W. 1 might have come to know the factum of execution of Ex. A. 14 partition deed of 1980, in 1981, he did not know about the actual division effected thereunder by metes and bounds till he gave evidence on 1-10-1981. Further, even for the alleged sub-division effected pursuant to Ex. A. 14, P.W. 1 has objected to the Tahsildar.
21. No doubt, learned Counsel for the appellants points out that law does not warrant formal despatch to, or receipt, by other members of the family, of the communication of Ex. A. 14. In this regard, he also relies on the following passage in Puttararigamma v. M. S. Ranganna, :--
"The correct legal position therefore is that in a case of a joint Hindu family subject to Mitakshafa Law, severance of status is effected by an unequivocal declaration on the part of one of the joint holders of his intention to hold the share separately. It is, however, necessary that the member of the joint Hindu family seeking to separate himself must make known his intention to other members of the family from whom he seeks to separate. The process of communication may, however, vary in the circumstances of each particular case. It is not necessary that there should be a formal despatch to or receipt by other members of the family of the communication announcing the intention to divide on the part of one member of the joint family. The proof of such a despatch or receipt of the communication is not essential, nor its absence fatal to the severance of the status. It is, of course, necessary that the declaration to be effective should reach the person or persons .affected by some process appropriate to the given situation and circumstances of the particular case."
Similar observations are found in Addagada Raghavamma v. Addgada Chenchamma, and Indira v. Sivaprasad Rao, ILR . But, we are not referring to this aspect of communication by the kartha to the other coparceners in order to test the validity of Ex. A.14 on the ground that there was no communication, but only in order to assess the fairness or justness in the partition effected thereunder. If a just and fair partition is effected by the 1st defendant, normally, he would have also communicated the same to all the coparceners concerned including the plaintiff. But, as already pointed out, in the present case, there is neither plea nor evidence that, in any form, the abovesaid Ex. A. 14 was communicated to the plaintiff. Therefore, taking all the above features into consideration, we have only to hold that the abovesaid Ex. A. 14 partition is not just or fair and cannot be called an equal partition among the coparceners. Therefore, Ex. A. 14 will not bind the plaintiff.
22. No doubt, learned counsel for the appellants submits that only if gross injustice is done, reopening of the partition effected should be resorted to. In this connection, he drew our attention to the relevant passage in Meyyappa v. I.-T. Commissioner and also points out that the said decision has been approved by the Supreme Court in (supra). He also points out that in Ratnam Chettiar v. S. M. Kuppuswami, it has been held that when a partition has been effected between the members of a Hindu undivided family by their own volition and with their consent, it cannot be reopened unless it is shown that the same is obtained by fraud, coercion or undue influence and that in such a case, the Court should require a strict proof of facts because an act inter vivos cannot be lightly set aside. But, we do not think that there are only some marginal inequalities in Ex. A. 14 partition and we have only to hold that Ex. A. 14 partition is grossly unfair to the plaintiff. Therefore, Ex. A.14 is not valid and binding on the plaintiff. Further, (supra) has no application to the present case since, there, partition was effected between the members of the family by their own volition and with the consent of all the coparceners.
23. The net result, is, there is no good reason to interfere with the judgment and decree of the Court below. Accordingly the appeal is dismissed with costs. C.M.Ps. are also dismissed.
24. Appeal dismissed.