Madras High Court
V.Santhanam vs Monika on 19 September, 2017
Author: R.Subramanian
Bench: R.Subramanian
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 19.09.2017
CORAM
THE HON'BLE MR. JUSTICE R.SUBRAMANIAN
A.S.No.491 of 2005
and
CMP.No.7367 of 2005
V.Santhanam ...Appellant
vs.
1.Monika
2.Shamili
( Respondents 1 and 2 declared as major and
their mother S.Sathya discharged from her
guardianship vide order dated 16.09.2015 made
in CMP.No.441 and 442 of 2015 in AS.No.491 of 2005 )
3.Lakshmi Devi
4.Chandiravadhana
5.Samundeeswari
6.Seetha ... Respondents
Appeal suit is filed under Section 96 of Code of Civil Procedure to set aside the judgment and decree dated 22.10.2003 in OS.No.5468 of 2001 on the file of the III Additional Fast Track Court, Chennai.
For Appellant : Mrs.Hema Sampath, Senior Counsel
for S.Venkateswaran
For Respondents : Mr.V.Manoharan for R1 and R2
J U D G M E N T
The first defendant in O.S.No.5468 of 2001 on the file of the Additional District Judge [Fast Track Court III], Chennai is the appellant. The said suit was filed by the two minor children of the first defendant claiming 1/3 share in the 'A' Schedule immovable property and for partition of their 1/5 share in the 'B' Schedule business and for accounting.
2. According to the plaintiffs the suit property along with other properties originally belonged to one Subramania Chettiar who had three sons viz., Vairalingam, Mohanan and Ramalingam. In a partition that was effected between the three sons of Subramania Chettiar on 28.07.1973, the suit 'A' Schedule property was allotted to Vairalingam. The said Vairalingam died in the year 1985 leaving behind his widow, the second defendant, one son the first defendant and three daughters defendants 3 to 5.
3. After the death of Vairalingam, the widow and three daughters of Vairalingam had released their rights for consideration in the suit 'A' Schedule property in favour of the first defendant. Thus according to the plaintiffs, the first defendant had become the absolute owner of the property. The property being ancestral property on introduction of the Hindu Succession Amendment Act 1 of 1990 the daughters of the first defendant viz., the plaintiffs had become coparceners. Hence, they are entitled to equal share along with their father, the first defendant.
4. Insofar as the suit 'B' Schedule business is concerned the plaintiffs would plead that the business was carried on by their grandfather Vairalingam and upon his death it is being continued by the father the first defendant. Hence, they are entitled to 1/5 share in the said business also.
5. The first defendant filed written statement contending that on the death of Vairalingam, after 1956 he had inherited property under Section 8 of the Hindu Succession Act and therefore, he will be the absolute owner of the property, the plaintiffs who were born after 1956 will not become coparceners.
6. As regards the business it is contended by the first defendant that even during the life time of the father the business was closed and the third defendant Chandiravadana had started a similar business in the same name and style and she is carrying on the said business. It is further contended that, the third defendant is absolute owner of the business and the first defendant has nothing to do with the said business. On the above pleadings the first defendant sought for dismissal of the suit.
7. The other defendants viz., the defendants 2 to 5 had adopted the written statement of the first defendant.
8. On the above rival pleadings the learned trial Judge framed the following issues :
1. Whether the plaintiffs are entitled 2/3 share and for partition of 'A' Schedule property ?
2. Whether the plaintiffs are entitled 1/5 share and for partition of 'B' Schedule property ?
3. Whether the plaintiffs are entitled for the relief of accounting of the Income and Expenditure of the 'B' Schedule property and for payment of 1/5 share of the amount arrived at the accounting ?
4. To what relief the plaintiffs are entitled ?
9. Before the trial Court the mother and the guardian of the plaintiffs examined herself as PW1 and Exs.A1 to A4 were marked. On the side of the defendants the first defendant was examined as DW1 and no documentary evidence were produced.
10. Upon consideration of the oral and documentary evidence, the learned trial Judge concluded that the suit 'A' Schedule property is ancestral property and the plaintiffs as coparceners are entitled to 1/3 share each. Insofar as the business is concerned the learned trial Judge concluded that the fact that the business was carried on by Vairalingam is admitted, therefore, the plaintiffs would be entitled to 1/5 share in the property. Aggrieved, the first defendant is on appeal.
11. Heard Mrs.Hema Sampath, learned Senior Counsel for the appellant and Mr.V.Manoharan, learned counsel for the first and second respondents. The respondents 3 to 6 though served are not appearing either in person or through counsel duly instructed.
12. Mrs.Hema Sampath, learned Senior Counsel appearing for the appellant would contend that on the partition between Vairalingam and his brothers that took place on 28.07.1973 the joint family ceased to exist and therefore Vairalingam was absolute owner of the property. On the death of Vairalingam, the property devolved on his wife and children in equal moieties. Therefore, the defendants 1 to 5 were entitled to 1/5 share, since the joint family ceased to exist even in the year 1973, the plaintiffs who were born much later cannot claim to be coparceners.
13. She would also contend that a son or daughter born after 1956 would not become coparcener and in support of her argument she would rely upon the judgment of Uttam Vs. Saubhag Singh and others reported in (2016) 4 SCC 68.
14. On the 'B' Schedule property viz., photo studio the learned Senior Counsel appearing for the appellant would contend that there is no evidence to show that the business was a joint family business and was treated as joint family business. She would also point out that it is the case of the plaintiffs that Vairalingam was running the business and upon his death it devolved on his children and widow.
15. That be the case, the first defendant / appellant, as a son would be entitled only to 1/5 share and that 1/5 share is inherited under Section 8 of the Hindu Succession Act which could not be considered as ancestral property. She would also invite my attention to the judgment of the Full Bench in The Additional Commissioner of Income Tax, Madras-1 Vs. P.L.Karuppan Chettiar reported in AIR 1979 Madras 1.
16. Per contra Mr.V.Manoharan, learned counsel for the respondents 1 and 2/ plaintiffs would contend that even in Uttam Vs. Saubhag Singh and others the Hon'ble Supreme Court has not said that the son or daughter born after 1956 would not become coparceners. He would draw my attention to paragraph 11 of the said judgment, wherein, the Hon'ble Supreme Court has referred earlier judgment of the Hon'ble Supreme Court in Gurupad Khandappa Magdum Vs. Hirabai Khandappa Magdum reported in (1978) 3 SCC 383, wherein, the explanation 1 to Section 6 has been given its full effect. While summarizing the law the Hon'ble Supreme Court in Uttam Vs. Saubhag Singh and others case has observed as follows:
(i) When a male Hindu dies after the commencement of the Hindu Succession Act, 1956, having at the time of his death an interest in Mitakshara coparcenary property, his interest in the property will devolve by survivorship upon the surviving members of the coparceneary (vide Section 6).
(ii) To Proposition (i), an exception is contained in Section 30 Explanation of the Act, making it clear that notwithstanding anything contained in the Act, the interest of a male Hindu in Mitakshara coparcenary property is property that can be disposed of by him by will or other testamentary disposition.
(iii) A second exception engrafted on proposition (i) is contained in the proviso to Section 6, which states that if such a male Hindu had died leaving behind a female relative specified in Class I of the Schedule or a male relative specified in that class who claims through such female relative surviving him, then the interest of the deceased in the coparcenary property would devolve by testamentary or intestate succession, and not by survivorship.
(iv) In order to determine the share of the Hindu male coparcener who is governed by Section 6 proviso, a partition is effected by operation of law immediately before his death. In this partition, all the coparceners and the male Hindu's widow get a share in the joint family property.
(v) On the application of Section 8 of the Act, either by reason of the death of a male Hindu leaving self-acquired property or by the application of Section 6 proviso, such property would devolve only by intestacy and not survivorship.
(vi) On a conjoint reading of Sections 4, 8 and 19 of the Act, after joint family property has been distributed in accordance with Section 8 on principles of intestacy, the joint family property ceases to be joint family property in the hands of the various persons who have succeeded to it as they hold the property as tenants-in-common and not as joint tenants.
17. With reference to the 'B' Schedule property, Mr.V.Manoharan, learned counsel would contend that the fact that Vairalingam during his life time was running business has been admitted, therefore, the plaintiffs would automatically be entitled to the share in the business.
18. On the above submissions the following points arises for determination in this appeal :
1. Whether it could be said that the entire A Schedule property is ancestral property in the hands of the first defendant, so as to enable the plaintiffs to claim a share even during the life time of the first defendant?
2. Whether the plaintiffs are entitled to B Schedule business?
Point Nos. 1 and 2:
19. I had an occasion to consider similar question as regards the right of son or daughter born after 1956 in M.Krishnamoorthy Vs. K.Pondeepankar. and others reported in 2017 (3) CTC 170 after noticing conflict of opinion between decisions of Co-equal Benches of the Hon'ble Supreme Court, I had concluded that the son or daughter born after 1956 will also be entitled to claim as coparcener.
20. Therefore, the contention of the learned counsel for the appellant that son or daughter born after 1956 will not become coparcener cannot be accepted. If such a contention is accepted, the same will result to destructive results inasmuch as several State enactments giving equal rights to the daughters were passed between 1986 and 1994 and finally the parliament enacted Hindu Succession (Amendment) Act 39 of 2005 giving equal rights to the daughters. In fact, the amended Section 6 has been held to be perspective and would apply only in the case where father is shown to be alive on the date of coming into force of the Act on 09.09.2005, in prakash Vs. Phulavathi reported in 2016 (2) LW 865. In view of the above stated legal position, I do not think the first contention of Mrs.Hema Sampath, learned Senior Counsel could be accepted.
21. Secondly, learned Senior Counsel would contend that it is only 1/2 share of Santhanam which devolved on him in his capacity as co-parcener, would be ancestral property in his hands vis-`-vis his daughters. Insofar as the other 1/2 share (i.e.) the 1/10 share inherited as Class-I heir of his father and remaining 4/10 share acquired by him by way of release cannot be termed as ancestral property vis-`-vis the plaintiffs.
22. In support of the said contention the learned Senior Counsel would rely upon the judgment of Full Bench of this Court in The Additional Commissioner of Income Tax, Madras-1 Vs. P.L.Karuppan Chettiar reported in AIR 1979 Madras 1, the said Full Bench dictum of this Court was approved by the Honble Supreme Court in Commissioner of Wealth Tax, Kanpur, etc. Vs. Chander Sen, etc., reported in AIR 1986 SC 1753.
23. The effect of the judgment of the Full Bench is that the share that devolves on the son in his capacity as coparcener will be ancestral property vis-`-vis his children and the share which is inherited by him on the death of his father as Class-I heir under Section 8 would be treated as his self-acquisition in which his children will not get a right by birth.
24. The Full Bench of this Court in The Additional Commissioner of Income Tax, Madras-1 Vs. P.L.Karuppan Chettiar reported in AIR 1979 Madras 1 has observed as follows :
The question is whether when succession opens under Section 8, Karuppan and his son will take the property in the same manner. Clearly, this is not so. When we search for the relatives mentioned in class I of the schedule, which is attracted by virtue of Section 8, we find no sons are mentioned at all though the grandson of a deceased son is mentioned. What would be the effect when such a grandson comes into the picture need not be dealt with in this case. But where the son as well as his son are the persons concerned, by applying Section 8, we have to come to the conclusion that the father alone, namely, Karuppan in this case will inherit the property to the exclusion of the grandson. This being the effect of the statutory provision, no interest will accrue to the grandson in the property which belonged to Palaniappa. Even assuming Palaniappa's property is ancestral property in the hands of Karuppan, still because of the effect of the statute, Karuppan's son will not have an interest in the property. This is directly derogatory of the law established according to the principles of the Hindu Law and this provision in the statute must prevail in view of the unequivocal expression of the intention in the statute itself which says that to the extent to which provisions had been made in the statute, those provisions shall override the established provisions in the texts of Hindu Law.
25. Therefore, there are two kinds of properties that devolve on the Hindu Son, the first kind is the share that he gets in the capacity of a coparcener under Section 6 and second is the share that he inherits as Class-I heir under Section 8. The effect of the judgment of the Full Bench of this Court referred Supra as well as the judgment of the Hon'ble Supreme Court in Commissioner of Wealth Tax, Kanpur, etc. Vs. Chander Sen, etc., reported in AIR 1986 SC 1753, is that the property that devolves on the son as coparcener will be treated as ancestral property vis-`-vis his children and the share that he inherits upon the death of his father as Class-I heir will be treated as his self-acquisition.
26. In the case on hand the admitted fact is that Vairalingam father of the first defendant died in the year 1985 leaving behind his widow, one son-the first defendant and the three daughters viz., the defendants 3, 4 and 5. Therefore, on the death of Vairalingam at the notional partition that is to be assumed under Section 6 Vairalingam gets 1/2 share, the son Santhanam gets the other 1/2 share as a coparcener. The 1/2 share of Vairalingam, that is his interest in mitakshara of coparcenary property, devolves on his Class-I heirs under Section 8 who are five in number viz., the widow, one son and three daughters. Therefore, each one only gets 1/5 of the 1/2 share (ie.) 1/10. This share inherited under Section 8 will undoubtedly take the colour of self-acquired property in the hands of the Class-I heirs Viz., the widow, son and three daughters.
27. Apart from the above the first defendant had obtained release of the shares of his mother and sisters for consideration. PW1 the next friend of the plaintiffs in her evidence has admitted that the release was acquired for a consideration and the consideration was paid out of the self earned funds of the first defendant.
28. Therefore, it is clear that the 1/2 share of Vairalingam of which 1/5 was inherited by the first defendant as the Class-I heir and 4/5 was acquired by the first defendant by way of release for a consideration would be the self-acquired property of Santhanam/ appellant in his hands. Therefore, it is only the 1/2 share of Santhanam which devolved on him by survivorship in the capacity as coparcener would be treated as an ancestral property or coparcenery property in which the plaintiff would get right by birth by virtue of Hindu Succession Amendment Act, 1 of 1990. It is not in dispute that the plaintiffs were born in 1989 to 1990, therefore, they would become coparceners by virtue of Section 29(A) introduced by Hindu Succession (Amendment) Act 1 of 1990.
29. Insofar as A Schedule property is concerned the plaintiffs would be entitled to equal share along with their father the first defendant in respect of the 1/2 share that devolved on him in his capacity as coparcener. Therefore, the plaintiffs would be entitled to 1/6 share each in the suit A Schedule property and not 1/3 share as held by the trial Court.
30. Insofar as the business in B Schedule is concerned, the pleading of the plaintiffs itself is not very clear, though they claim that it is ancestral property of the plaintiffs and defendants they would claim 1/5 share. It is the contention of the first defendant that though the business was carried on by his father during his life time but it was shutdown when the father suffered heart attack and he had sold the cameras and utilised the proceeds for the purpose of his treatment. It is stated that the present business is carried on by the third defendant as the proprietor. As such the family has nothing to do with the said business. In proof of the claim of the plaintiffs we do not have anything except the evidence of the next friend of the minors. Admittedly she got married in 1988 whereas Vairalingam died in 1985 therefore, she is not competent to speak about the nature of business.
31. On the other hand the evidence of DW1 in this respect is very clear and convincing. He had said that his father was carrying on the business in the name and style of "Vandhana Studio" and the same was closed even before his death, the present business is being carried on by the third defendant as sole proprietor. Therefore, the plaintiffs cannot claim share in the said business.
32. The business carried on by an individual cannot be presumed to be joint family business unless it is pleaded and proved. I must point out that there is neither a pleading nor a proof in support of the case of the plaintiffs that the business is a joint family business. The claim of the plaintiff seems to be on the ground that their grandfather carried on the business therefore, they are automatically entitled to a share. The said claim cannot be accepted. Unless it is shown that the business is joint family business, the plaintiff cannot claim to be entitled to the share that too even during the life time of the defendant.
33. The trial Court has not rendered any finding as to the nature of the business, it had straight away gone on the admission that the deceased Vailralingam was carrying on the business. Therefore, I am unable to sustain the conclusion of the trial Court on the entitlement of the plaintiff to share in the business shown in the B Schedule.
34. In the result, the appeal is allowed in part. The plaintiff would be entitled to preliminary decree for 1/6 share each in A Schedule property alone. Insofar as the B Schedule property is concerned the suit will stand dismissed. There will be no order as to costs in this appeal. Consequently, the connected Miscellaneous Petition is closed.
19.09.2017 dsa Index : Yes Internet: Yes Speaking order To The III Additional Fast Track Court, Chennai.
R.SUBRAMANIAN,J.
dsa A.S.No.491 of 2005 and CMP.No.7367 of 2005 19.09.2017