Karnataka High Court
Smt. Mangala vs Smt. Jayabai And Others on 15 April, 1994
Equivalent citations: AIR1994KANT276, II(1994)DMC214, ILR1994KAR1282, 1994(3)KARLJ481, AIR 1994 KARNATAKA 276, ILR(1994) KANT 1282, (1994) 3 KANT LJ 481, (1994) 2 DMC 214, (1995) 1 CURCC 426, (1995) MATLR 123, (1994) 2 HINDULR 47
ORDER Vasanthakumr, J.
1. The appeal is directed against the judgment and decree passed in O.S. No. 3/1975 on the file of the Civil Judge, Belgaum wherein the suit is filed by one Mangala daughter of Virupax Deshpande seeking for partition of 1 / 4 share in the suit schedule properties, she having succeeded to the estate of her late father Virupax Deshpande who died intestate leaving behind wife Smt. Jayabai and three daughters inclusive of the plaintiff was dismissed. The Geneological tree of the faimly of Virupax Deshpande being-
Virupax Deshpande (died on 30-4-1962)
= Smt. Jayabai (First Defendant)
___________________|_________________________
| | |
Smt. Manjula bai. Smt. Meera Smt. Managala
(second defendant) (third defendant) (plaintiff)
Few facts to briefly state are :
2. During the lifetime of Virupax Deshpande, the schedule properties were joint Hindu family properties at the hands of Virupax Deshpande. Virupax Deshpande dies on 30-4-1962 intestate leaving wife and daughters as mentioned in Geneological tree as his legal representatives and at the time of his death plaintiff and second and third defendants were minors and first defendant was acting as natural guardian of her minor daughters and also was managing the suit schedule properties. The first defendant wife of Virupax Deshpande and mother of plaintiff and second and third defendants sold away all the family properties and the plaintiff after attaining majority has challenged the alienations effected by her mother the first defendant and has pleaded that alienations as not binding on her in view of the fact that her mother either as natural guardian or as Manager had no legal competency to effect alienation of the schedule famly properties so as to bind her 1/4 share in the properties in question. The plaintiff has arryaed her mother and two sisters as Defendants 1 to 3 and other alienees as defendants 4 to 46 and since some of the family lands were proposed to be acquired, the 47th defendant was made party.
3. Sum and substance of plaintiffs pleading being--
(1) That alienation effected by plaintiffs mother during her minority as being not binding to the extent of her share and her natural guardian mother had no legal capacity to alienate minors' properties without the requisite sanction under the provisions of Hindu Minority and Guardianship Act and as such sales effected by her mother as not binding on minors' shares and in consequence thereon plaintiff being entitled to partition of her share in suit schedule properties A to D. (2) That there was no family necessity to effect sales and further her mother could not act as Manager of Joint Hindu Family after the death of Virupax Deshpande, as there was no male member in the family.
The third defendant has supported plaintiffs cause and has paid the requisite court-fee towards her 1/4 share.
Defendants 1, 2, 6, 10 to 13, 17, 18, 20, 22, 26, 37 to 39 have been placed ex parte. Defendants 19 and 36 are said to be same persons. Suit is dismissed as against Defendants 19, 21, 23, 36, 40 and 46. Defendants 5, 7, 8, 14, 15, 16, 24 to 25, 27, 28, 29, 30 to 35, 41, to 45 and 47 are represented by counsel.
Plaintiff has settled suit claim with Defendants 4 and 5, 30 to 35. Plaintiff has also settled suit claim with fourth and fifth defendants. Written statements have been filed by Defendants 3, 7, 8, 14, 15, 16, 24, 25, 29 and 47.
4. The sum and substance of the defence of contesting defendants are:
(1) That First defendant was in financial difficulties and she was compelled to effect sales not only for legal necessity but for the benefit of minor daughters.
(2) That alienees as being bona fide purchasers for valuable consideration.
(3) Improvements have been effected (4) Suit being barred by period of limitation (5) Suit as being not maintainable in the absence of declaration for cancellation of sales effected by first defendant.
(6) That suit schedule properties as being the absolute properties of first defendant as extracts in the Revenue Registers disclose her name.
(7) That first defendant as natural guardian and Manager of Joint Hindu Family for necessity has sold the family properties and as such no permission being necessary under the Hindu Minority and Guardianship Act hereinafter called as M. & G. Act 1956 (8) That First defendant had ostensible authority and the alinees after having made bona fide enquiries and in good faith purchased the family properties.
Twenty Ninth defendant in addition to the pleas put forward by others has set up independent right title and interest in the 'D' suit schedule properties. Twenty fourth and Twenty fifth defendants have not only denied the geneology of the plaintiffs family but have set up their own title in suit schedule properties.
5. Plaintiff got herself examined as PW 1 and got 108 documents marked as Exhibit P. 1 to P.108 and Defendants have got examined three witnesses as DW 1 to DW 3 who are defendants 3, 7 and 8. and got three documents marked as Exhibit D.1 to D.3.
The Court of the First instance framed 13 issues which are as follows:
1. Is it proved by plaintiff that the properties mentioned in Schedules of the plaint were the properties left by her deceased father?
2. Is it proved that plaintiff has 1/4 or any share in them?
3. Are the alienations of Schedule B properties or any of them made by Defendant No. 1 are binding on plaintiffs share?
4. Is it proved by deft-5 that he or his predecessor-in-title were tenants of suit R.S. No. 65, and his tenancy rights revive if this alienatio'n is set aside.?
5. Are defendants bona fide purchasers for value and without notice of plaintiffs share, and hence their sales are protected?
6. Was defendant No. 1 an ostensible owner of suit properties, if so, are the alienations protected under Section 49 of T.P. Act?
7. Is any improvement made by any of the defendants in their purchased properties? If so, at what cost?
8. Is plaintiff liable to pay her proportionate share of it, before getting her share?
9. Is his suit of plaintiff for partition not tenable without plaintiff getting the alienations avoided?
10. Is the suit valuation made and court-fee paid proper?
11. Is the suit against defendant-47 maintainable?
12. What order? What Decree?
Additional issue:--
13. Whether suit is barred by limitation?
6. The Court of the First instance decreed the suit claim only in part as against A and D schedule properties and negatived plaintiff's claim in other aspects. Aggrieved by the decree passed in O.S. No. 3/75, the plaintiff has filed this appeal.
The main grounds of appeal being-
1) provisions of Section 6 and 12 of Hindu Minority and Guardianship Act having not been properly interpreted
2) Reliance on ratio decided in Gangoji Rao v. Channappa as being not proper.
3) Finding that Defendant 1 as natural guardian of her minor children had ostansible authority to alienate the famly properties as being not correct.
4) Finding that alienees as being bona fide purchasers of suit schedule properties also as being not proper.
7. The questions that arise for our considerations are:
1) Whether the first defendant Smt. Jayanai wife of late Virupax Deshpande had legal capacity to alienate shares of her minor daughters (plaintiff and defendants 1 and 2) as natural guardian.
2) Whether Smt. Jayabai first defendant could act as Manager of Joint Hindu Family property and effect sale of minor shares for family necessity and in the instant case in the absence of male member in the family whether the properties left behind by her husband at her hands continued to retain its character as Joint Hindu Family property.
3) Whether Smt. Jayabai as natural guardain should have obtained permission of the court under Section 8 of the Hindu Miniority and Guardianship Act and in the absence of the same whether all the alienations to the extent of minors shares or to the extent of plaintiffs share are to be declared as void.
Reliance is placed on the following decisions:--
, C.I.T. v. G.S. Mills; , Gangojirao v. Chennappa; , Surjit Lal v. I.T. Commr. Bombay, , Rajasekar v. Siddalingapa; , T. Gounder Parvathimmal.
Ratio in :
Co-parcenership is a necessary qualification for the managership of a Joint Hindu Family and as a widow is not admittedly a coparcenor, she has no legal qualification to become the manager of a Joint Hindu Family.
Ratio in :
In the absence of father, the mother could manage the Joint family property including the interest of male and female minors, in such property. Section 12 of M and G Act does not empower appointment of Court guardian. Mother managing family property being natural guardian. Section 11 of M. & G. Act is not attracted, and can validly alienate the property including minors in it for family necessity without obtaining permission of the Court. Legislature has in its wisdom used term 'Joint Family' in Section 6 and 16 thus contradistinguishing it from co-parcenary. The mother can also manage the family property is evident from Section 12 referring to family property being in the management of 'an adult member' of the family. The Joint family includes in it the mother, son and umarried daughters and the expression joint family property is used in its wider sense including the shares of these female members.
Ratio in Hindu co-parcenary is a much narrower body than the Joint family. It includes only those persons who acquire by birth an interest in the joint or co-parcenary property and there are sons, grandsons and great-grandsons of the holders of the Joint properly for the time being. Since under the Mithakshara Law the right to joint family property by birth is vested in the male issue only females who come in only as heirs to obsstructed heritage cannot be co-parcerners. Outside the limits of co-parcenary there is a fringe of persons males and females who constitute an undivided or joint family. There is no limit to the number of persons who can compose it nor to their remoteness from the common ancestor and to their relationship with one another. The joint Hindu Family is thus a larger body consisting of group of persons who are united by the tie of sapindaship arising by birth, marriage or adoption. The fundamental principle of the Hindu Joint Family is the Sapindaship. The absence of an antecedent history of Jointness between the assessee and his ancestors is no impediment to the assessee his wife and unmarried daughter forming a joint Hindu Family. That it does not take more than one male to form a joint Hindu Family, with female is well established.
Thus a man who separates from his father or brothers may nevertheless continue to be joint with member of his own branch.
8. He becomes the head of a new Joint Family if he has family and if he obtains property on Partition with his father and brothers that property becomes ancestral property or hsi branch Qua him and his male issue. It is true that one cannot constitute co-parcenary with his wife and unmarried daughter.
Joint Hindu family with all its incidents is thus a creature of law and cannot be created by act of parties except to the extent of which a stranger may be affiliated to the family by adoption. But the absence of antecedent history of jointness, between the male member and his ancestors is no impediment to the male member, his wife and unmarried daughter forming a joint Hindu family. The male member's wife becomes his sapinda on her marriage with him. The daughter too on her birth became sapinda and until she leaves the family by marriage the tie of sapindaship will bind her to the family of her birth.
Ratio in II.R (1986) 2 Kant 2765 : Rajasekar v. Siddalingappa. Minors undivided interest in joint family property does not fall within the ambit of Section 6 of Mand G Act. When Section 8 does not take within its ambit minors undivided interest in the Joint Family property. Section 8(3) would not be applicable. It is settled law that natural guardian of minor has the necessary competence to deal with even the separate property of the minors for necessity.
Ratio in .
Where all members who could succeed to the properties of the deceased are female members the position is clear that such female members who succeed to the ancestor take no doubt definite shares in the estate under the Hindu Succession Act but the interest of each in it is a tenant in common. Though it entitles a sharer to claim an independent share in the Joint Hindu Family yet she cannot act for other members of the family and assume the garb of Joint Family Manager or an eldest member of the family so as to alienate or part with such properties for the benefit of one or such other member.
9. Ratio of the decisions clearly postulates existence of joint Hindu Family constituting of either male members or one male member, by virtue of which after the death of Karta of the Joint Hindu Family, family continued to be Joint Hindu Family provided one male member exists. Mother being natural guardian can meddle with the interest of her minor children which is inclusive of male and female members. We are of the view that in the absence of male member, the famly property in the hands of widow and her female children cannot be characterised as Joint Hindu Family Property with a view to enjoin the widow to act as either Manager or as natural guardian to meddle with the family property with a view to bind the interest of minor daughters who will have succeeded to the estate of their father by virtue of succession under the provisions of Hindu Succession Act de hors the provisions of Section 8(3) of the M and G Act. Further a joint and undivided family may consist of persons who do not form any co-parcenary at all, it may consist of persons only provided there is amongst them a potential mother who in the way of nature or law may add a male member to it.
10. From the ratio of the above decisions, what is to be noted is that Hindu Joint Family can exisi with one male member. While dealing with the powers of mother as natural guardian regarding the Joint Family Properties one thing is evident that existence of male member is contemplated. Further, there are instances where male member is a minor even then he can be construed as karta of the Joint Hindu Family and mother can as natural guardian of the Manager minor karta of Joint Hindu Family can meddle with the family properties for family necessity so as to bind all the members of Joint Hindu Family.
11. The question that arises for consideration is whether restrictions contained in S. 8 is applicable to cases where there is no male member in the family and mother as natural guardian of her minor daughters who constitute the family can alienate their shares so as to bind their shares which they have succeeded to the estate of their father, by virtue of Hindu Succession Act, who died intestate and that too when the family property was retained by him as the karta of the joint Hindu Family at the time of death. What is to be noted is that when father dies with sons and minor daughters who are also entitled to inherit jointly with the sons to the father's property under Hindu Succession Act, 1956 the interest of minor daughters in the property left by their father's property will be the undivided interest in the joint family pro-
perty and Section 6 of the M and G Act would not apply, since there exists a Joint Hindu Family and share would be undivided interest. But in cases where father dies leaving behind only his wife and minor daughters, the question of family property retaining the character of Joint Hindu Family property does not exist and as such the operation of Section 8(3) of M and G Act is attracted.
12. Sales by mother as natural guardian of her minor daughters shares would not be binding on the minor daughters shares and all alienations have to be declared as void subject to the options to be exercised by the minor daughters since there exists no Joint Hindu Family in the instant case after the death of the father who has left no male issue.
Our answers to the questions formulated are:
Answer to Q. I: First Defendant Jaya Bi as wife of late V. Deshpande had capacity to act as natural guardian and she can alienate the undivided interest of her minor children provided there exists male coparcener in the family.
Answer to Q. 2: Jayabai being a female member cannot constitute.
a) as member of coparcenary and as such she cannot act as a Manager of Joint Hindu Family.
b) Mother has no legal capacity to alienate the family properties for family necessity with a view to bind the minors interest as Manager.
Mother as natural guardian need not obtain permission of the Court to alienate minors undivided interest in the Joint Hindu Family property provided there exists Joint Hindu Family inclusive of minor co-parcener since interest of a minor daughters would be undivided interest in the estates of their father by virtue of provisions of Sections 6 and 12 of M and G Act.
Answer to Q. 3: In the absence of the male member being in the family, the family property in the hands of mother and her minor daughters plaintiffs, D2 and D3 cannot partake the character of Joint Hindu Family property and in view of Succession Act minor daughters succeed to the estate of their late father. Then in such circumstances, the mother who acts as natural guardian of her minor daughters must obtain permission to effect any alienation under S. 8(3) of the M. and G. Act.
13. In Amrutham Kudumbah v. Sarnam Kudumban reported in AIR 1991 SC 1256 while discussing the scope of sub-section (3) of Section 5 of M. & G. Act, Supreme Court has observed at para. 9 as follows. It reads :
"The effect of this sub-section is that any disposal of immovable property by a natural guardian otherwise than for the benefit of the minor or without obtaining the previous permission of the court is voidable. A person entitled to avoid such a sale is either the minor or any person claiming under him. This means that cither the minor, or his legal representative in the event of his death, or his successor-in-interest claiming under him by reason of transfer inter vivos, must bring action within the period prescribed for such a suit, i.e., three years from the date on which the minor died or attained majority, as the case may be. In the present case, the suit was brought, as found by the Courts below, within three years after the minor attained majority."
14. Whatever be the position in regard to cases under the Taxation Law with reference to joint family, the question now is whether on the death of Virupaksh Deshpande on 30-4-1962, what is the position of mother with reference to Hindu Joint Family as the mother is the guardian of the daughters ? whom who were minors and also with reference to other daughters.
It is settled principle that succession cannot be in abeyance. Section 6 of the Hindu Succession Act provides for devolution of interest of a coparcenary property. The proviso thereto is that if the deceased male Hindu had left him surviving a female relative in Class A, then the interest devolves by succession under the Act. That is the position here.
Consequently on the death of Virupaksha Despande who had possessed joint family property and who died leaving behind him a wife and three daughters (and no son) even so the property devolves upon them as heirs in Class A. Section 19 of the same Act provides that when two or more heirs succeeded of the same class, as heirs they do so under the Act as tenants in common. It is immaterial that the shares are not divided by metes and bounds but each has a definite share. That appears to be the position.
That is the position referred to in Thiru-malaiswamy Gounder v. Parvathiammal, which precisely and directly is attracted here.
Consequently, defendant No. 1 does not acquire the status of a Manager which alone would entitle to her to deal with the joint family properties including the shares of other minors like her daughters. It follows that the first defendant did not have any authority to alienate the shares of any of the daughters muchless the minor daughters.
15. As such the findings arrived at by the court below are set aside to the extent of plaintiffs reliefs being negatived in respect of her 14 share in 'B' and 'C' schedule properties. Decree passed in respect of 'A' and 'D' schedule properties is confirmed.
Decree of the trial court is modified to the extent of 'B' and 'C' schedule in other respect decree is confirmed. Preliminary decree to be drawn up accordingly.
This Regular First Appeal is allowed. No costs.
16. Appeal allowed.