Karnataka High Court
Sri Nishanth D Shekar vs Sri M C Dayashekar on 14 January, 2020
Bench: B.V.Nagarathna, Jyoti Mulimani
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14th DAY OF JANUARY, 2020
PRESENT
THE HON'BLE MRS. JUSTICE B. V. NAGARATHNA
AND
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
REGULAR FIRST APPEAL No.2208/2018 (PAR)
BETWEEN:
1. SRI NISHANTH D. SHEKAR
S/O. M.C. DHAYASHEKAR,
AGED ABOUT 24 YEARS,
R/O. MADEGODU VILLAGE,
SHANIVARASANTHE HOBLI,
SOMWARPET TALUK,
KODAGU DISTRICT - 571 236.
2. KUMARI NEHA
D/O. M.C. DHAYASHEKAR,
AGED ABOUT 16 YEARS,
SINCE MINOR - REPRESENTED
BY HER MOTHER AND NATURAL
GUARDIAN, SMT. N.S. SOWMYA
W/O. M.C. DHAYASHEKAR
AGED 47 YEARS,
R/O. MADEGODU VILLAGE
SHANIVARASANTHE HOBLI,
SOMWARPET TALUK,
KODAGU DISTRICT - 571 236. ... APPELLANTS
(BY SRI S. KALYAN BASAVARAJ, ADVOCATE)
AND:
1. SRI M.C. DAYASHEKAR
S/O. S.M. CHANDRASHEKAR,
AGED ABOUT 52 YEARS,
R/O. MADEGODU VILLAGE,
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SHANIVARASANTHE HOBLI,
SOMWARPET TALUK,
KODAGU DISTRICT - 571 236.
2. SRI S.C. SHARTHSHEKAR
S/O. S.M. CHANDRASHEKAR,
AGED ABOUT 45 YEARS,
R/O. MAIN ROAD,
SHANIVARSANTHE HOBLI,
SOMWARPET TALUK,
KODAGU DISTRICT - 571 236.
3. SMT. S.C. SAROJA
W/O. S.M. CHANDRASHEKAR,
AGED ABOUT 73 YEARS,
R/O. MAIN ROAD,
SHANIVARSANTHE HOBLI
SOMWARPET TALUK
KODAGU DISTRICT - 571 236.
4. SRI M.U. VEERENDRA KUMAR
S/O. M.K. UMESH,
AGED 44 YEARS
R/AT DOOR NO.62,
PRASANTH APARTMENT,
PRASANTHE NAGARA, VIJAYANAGAR
BANGALORE - 560 040.
[PLACED EX-PARTE]
5. SRI C.V. MOHAN
S/O. VENKATESH
AGED ABOUT 31 YEARS,
R/O. DEEGANTH CHAT CENTER
F.M. CARIAPPA ROAD,
SHANIVARSANTHE TOWN,
SOMWARPET TALUK,
KODAGU DISTRICT - 571 236.
6. SRI S.J. RAVIKUMAR
S/O. S.E. JAYAPPA,
AGED 44 YEARS,
R/O. SAMPIGEDALU VILLAGE,
HANDLI POST, KODLIPET HOBLI,
SOMWARPET TALUK,
KODAGU DISTRICT - 571 236.
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7. SRI H.M. KOMALESH
S/O. H.D. MALLIKARJUNA,
AGED ABOUT 37 YEARS,
R/O. HEBBULSE VILLAGE,
HANDLI POST, KODLIPET HOBLI,
SOMWARPET TALUK,
KODAGU DISTRICT - 571 236.
8. SRI K.K. SADASHIVAPPA,
S/O. K.E. KUMARAPPA,
AGED ABOUT 40 YEARS,
R/O. KITTURU VILLAGE,
HANDLI POST, KODLIPET HOBLI,
SOMWARPET TALUK,
KODAGU DISTRICT - 571 236.
9. SRI R.R. MANOJKUMAR
S/O. K.E. RUDRAPPA
AGED ABOUT 46 YEARS,
R/O RAMANAHALLI VILLAGE,
NANDIGUNDA POST,
SHANIVARSANTHE HOBLI,
SOMWARPET TALUK,
KODAGU DISTRICT - 571 236.
10. SRI G.S. SHIVARUDRAPPA
S/O. LATE SIDDAPPA SHETTY,
AGED 64 YEARS,
R/AT F.M. CARIAPPA ROAD,
SHANIVARSANTHE TOWN,
SHANIVARSANTHE, REVENUE CIRCLE,
SOMWARPET TALUK,
KODAGU DISTRICT - 571 236.
11. SRI KALINGAPPA
S/O. SAMPIGEDALU EREGOWDA,
AGED 8O YEARS,
AGED ABOUT 45 YEARS,
R/O. JAGENAHALLI VILLAGE,
SHANIVARASANTHE HOBLI,
SOMWARPET TALUK,
KODAGU DISTRICT - 571 236.
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12. SMT. MUTHAMMA
W/O. SRI KALINGAPPA
AGED 70 YEARS,
R/O. JAGENAHALLI VILLAGE,
SHANIVARASANTHE HOBLI,
SOMWARPET TALUK,
KODAGU DISTRICT - 571 236.
13. SMT. H.S. SEVANTHI
W/O. G.M. GURUSHANTHAIAH,
AGED 42 YEARS,
R/O. HEBBULSE VILLAGE,
HANDLI POST, KODLIPET HOBLI,
SOMWARPET TALUK,
KODAGU DISTRICT - 571 236.
14. SMT. K.R. PREMAKUMARI
W/O. S.P. SHIVAPPA
AGED 59 YEARS
R/O SAMPIGEDALU VILLAGE
KODLIPET HOBLI
SOMWARPET TALUK
KODAGU DISTRICT - 571 236.
15. SRI C.P. BHARATH KUMAR
S/O. C.N. PUPPAIAH
AGED 43 YEARS
R/O MADEGODU VILLAGE
SHANIVARASANTHE HOBLI
SOMWARPET TALUK
KODAGU DISTRICT - 571 236.
16. SRI C.P. VASANTH KUMAR
S/O. C.N. PUPPAIAH
AGED 47 YEARS
R/O. MADEGODU VILLAGE
SHANIVARASANTHE HOBLI
SOMWARPET TALUK
KODAGU DISTRICT - 571 236.
17. SMT. M.N. MADURA
W/O. PAPANNA
AGED 40 YEARS
R/O. HEMMANE VILLAGE
SHANIVARASANTHE HOBLI
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SOMWARPET TALUK
KODAGU DISTRICT - 571 236.
18. SRI DODDAGOWDA
S/O. JAVAREGOWDA
AGED 68 YEARS
R/O. HADYA VILLAGE
NADUVANI POST
HOLENARASIPURA TALUK
HASSAN DISTRICT - 573 210. ... RESPONDENTS
(BY SRI KUMAR.M.B., ADVOCATE FOR
R-6 & R-13; SRI P.S.MOHAN, ADVOCATE FOR
R-9, R-11, R-12 AND R-14 TO R-18;
SRI G. BALAKRISHNA SHASTRY, ADVOCATE
FOR R-2 & R-3, RESPONDENT NOS.1,5,7 & 10
ARE SERVED AND UNREPRESENTED
NOTICE TO R-8 IS HELD SUFFICIENT,
NOTICE TO R-4 IS DISPENSED WITH)
THIS RFA IS FILED UNDER SECTION 96 OF THE CODE OF
CIVIL PROCEDURE AGAINST THE JUDGMENT AND DECREE
DATED 28.11.2018 PASSED IN O.S.NO.42/2017 ON THE FILE
OF THE SENIOR CIVIL JUDGE, SOMWARPETE, REJECTING THE
PLAINT FILED UNDER ORDER 7 RULE 11(a) OF CPC.
THIS RFA COMING ON FOR ADMISSION THIS DAY,
NAGARATHNA J., DELIVERED THE FOLLOWING:
JUDGMENT
Though this appeal is listed for admission, with consent of learned counsel for the parties, it is heard finally.
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2. The plaintiffs are the appellants. They have filed this appeal assailing the order and decree passed by the Senior Civil Judge at Somawarapete, in O.S.No.42/2017, dated 28th November, 2018. By the impugned judgment and decree, the trial Court has exercised power under Order VII Rule 11(a) of the Code of Civil Procedure, 1908 (CPC) and rejected the plaint.
3. Succinctly stated, the facts are that the appellants - plaintiffs filed the suit seeking relief of partition and separate possession of their 1/3rd share in the suit schedule 'A' properties by metes and bounds and partition of 'B' schedule properties in a likewise manner, and consequential relief of declaration that the sale deeds referred to in the plaint are not binding on the share of the plaintiffs. The exact words of the prayers sought for by the appellants - plaintiffs are extracted as under :
"Therefore, the plaintiffs pray for a judgment and decree against the defendants for -
a) Partition of the suit 'A' properties by metes and bounds and for separate -7- possession of 1/3rd share each to the plaintiffs and
b) Partition of the suit 'B' properties by metes and bounds and for separate possession of 1/3rd share of defendant No.1 and
c) Consequential declaration that the sale deeds above said are not binding to the share of the plaintiffs and
d) Costs of this suit and
e) Such other order/s /reliefs as may be found to be granted or deemed fit under the circumstances of the case, in the interest of justice."
The aforesaid suit was filed in respect of the following 'A' and 'B' schedule properties:
"A SCHEDULE PROPERTIES
1) 5.00 acres Redeemed Sagu Jaga in Sy.
No.1/7a of katha No.92 with a land revenue assessment of Rs.71.66 situated at Hithlukeri Village, Shanivarsanthe Hobli, Somwarpet Taluk, Kodagu District.
2) 0.24 acres of Sagu Kushki land in Sy.
No.116/1 of Katha No. with a land revenue assessment of Rs.0.35/-
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3) 0.70 acres of converted Sagu Kushki land in Sy. No.18 of Katha No.121
4) 0.62 acres of converted Sagu Kushki land in Sy. No.14 of Katha No.121
5) 0.75 acres of Converted land in Sy.
No.25 of Katha No.121 6) 0.95 acres of converted land in Sy.
No.36 with a land revenue assessment of Rs.7.79
7) 1.60 acres of Sagu Thari land in Sy.
No.47 with a land revenue assessment of Rs.21.15 Item No.2 to 7 are situated at Hemmane Village, Shanivarsanthe Hobli, Somwarpet taluk, kodagu District
8) 0.06 acres of converted land with a tiled house in bearing No.62/2 of katha No.40 situated at Hemmane Line Village, Shanivarsanthe Hobli, Somwarpet Taluk, Kodagu District.
B SCHEDULE PROPERTIES
1) 0.25 acres of Sagu Hithlu land in Sy.
No.57/2 of katha No.11 with a land revenue assessment of Rs.3.58 and situated at Chikanalli Village, Shanivarsanthe Hobli, Somwarpet taluk, Kodagu District
2) 0.80 acres of Sagu Kuravu land in Sy.
No.63/2 of katha No. 58 and situated at Appasettalli Village, Shanivarsanthe Hobli, Somwarpet Taluk, Kodagu District.
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3) 0.11 acres of Manedala land with a tiled house and a RCC house along with vacant land in Sy. No.126/9 of katha No.25 and situated at Bidaruru line, Shanivarsanthe Hobli, Somwarpet taluk, Kodagu District."
4. In response to the suit summons and Court notices, the defendants appeared and filed their written statements.
5. The trial Court subsequently raised the following issues in the suit:
"1. Whether the plaintiffs prove that they are having birth rights over the suit properties as coparceners ?
2. Whether the plaintiffs prove that the sale deeds executed by their father are not binding on them ?
3. Whether the suit is properly valued and the court fee paid is sufficient ?
4. Whether the suit is within limitation?
5. Whether the suit suffers for want of necessary parties?
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6. Whether the plaintiffs have cause of action to file the suit?
7. What order or decree ?"
6. Issue No.6 was considered as a preliminary issue. Arguments were heard on behalf of the respective parties. Issue No.6 was answered in the negative i.e. to hold that the plaintiffs had no cause of action to file the suit. Consequently, the plaint was rejected under Order VII Rule 11(a) of CPC. Being aggrieved, the plaintiffs are before this Court.
7. We have heard learned counsel for the appellants - plaintiffs and learned counsel for respondent Nos. 2 and 3 who are defendant Nos. 2 and 3 in the suit.
8. Respondent Nos. 1, 5, 7 and 10 are served and unrepresented. Notice to respondent No.8 is held sufficient. Notice to respondent No.4 is dispensed with.
9. We have perused the material on record, including the plaint filed in O.S.No.42/2017.
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10. Appellants' counsel contended that the plaintiffs - appellants are the children of M.C. Dayashekar. He was defendant No.1 in the suit. M.C. Dayashekar and M.C. Sharath Shekar are the children of S.M. Chandrashekar and S.C. Saroja. That S.M.Chandrashekar died on 15.05.1998. During his lifetime, on 03.12.1984, he had partitioned the suit schedule properties between himself and his male coparceners, i.e. his sons. That 'A' schedule property fell to the share of the father of the plaintiffs. The plaintiffs were not yet born on the date of the partition i.e. on 03.12.1984 and they were born subsequently. The plaintiffs being the son and daughter of defendant No.1 filed the suit seeking partition and separate possession of the suit schedule properties to an extent of 1/3rd share each. After filing of the written statement and formulation of issues, the trial Court has erroneously exercised power under Order VII Rule 11(a) CPC while answering Issue No.6 as a preliminary issue and has rejected the plaint by holding that the plaintiffs had no cause of action to file the suit. He contended that the trial Court misdirected itself in rejecting the plaint. That this is
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not a case of succession. That the father of the plaintiffs is very much alive. The suit is one for partition and separate possession of 'A' schedule properties by metes and bounds. The trial Court has concluded that the plaintiffs have no right, title or interest in 'A' schedule properties which devolved on defendant No.1, their father, by virtue of a partition dated 03.12.1984.
11. The trial Court has referred to several judicial dicta which are inapposite and are not applicable and has rejected the plaint. As a result, plaintiffs' right to seek partition and separate possession of the suit schedule properties has been frustrated. He submitted that when the issues were framed and the matter was at the stage of trial, the trial Court could not have rejected the plaint erroneously. He contended that this Court may set aside the impugned judgment and decree by allowing the appeal and restoring the suit on the file of the concerned trial Court.
12. In this regard, learned counsel for the appellants drew our attention to the contents of the plaint
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and submitted that, on a meaningful reading of the plaint, it cannot be concluded that there was no cause of action for the plaintiffs to file the suit.
13. Learned counsel for the appellants submitted that 'A' schedule properties fell to the share of the father of the plaintiffs i.e. defendant No.1 at a partition dated 03.12.1984. That 'B' schedule properties were not partitioned on the demise of S.M.Chandrashekar and defendant No.1 had succeeded to the same, but the trial Court could not have, on that basis, rejected the plaint.
14. Per contra, learned counsel for respondent Nos. 2 and 3 supported the judgment of the trial Court and contended that the trial Court was right in dismissing the suit. That the suit schedule properties fell to the share of the father at a partition that took place on 03.12.1984. That on the said date, the plaintiffs were not born. That defendant No.1 - father of the plaintiffs was the sole surviving coparcener and the said property had to be construed and treated as his separate property. Therefore, the plaintiffs had no right, title or interest in the
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said property and they could not have sought partition during the lifetime of their father. Similarly, he contended that 'B' schedule properties was succeeded to by defendant No.1 on the demise of his father i.e. plaintiffs' grand father
- S.M.Chandrashekar and the plaintiffs not having any right, title or interest in the suit 'B' schedule properties as they had not inherited the same, could not have filed the suit seeking partition of the said properties.
15. In support of his submission, learned counsel for respondent Nos. 2 and 3 placed reliance on the judgment of the Hon'ble Supreme Court in the case of Uttam vs. Saubhag Singh and others reported in 2016 SCC (4) 68. He further relied upon Commissioner of Wealth Tax, Kanpur and others vs. Chander Sen and others, reported in (1986) 3 SCC 567.
16. By way of reply, learned counsel for the appellants contended that as far as 'A' schedule properties are concerned, there is no dispute that the said schedule properties fell to the share of defendant No.1, namely appellants' father, at a partition that took place on
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03.12.1984. It may be, subsequent to the said partition, until the plaintiffs were born, the defendant No.1 was the sole surviving coparcener, but once his children were born, they acquired a title by birth and their father ceased to be a sole surviving coparcener. That acquisition of right in ancestral or joint family property by birth is an elementary principle of Hindu Law and the trial Court has ignored the same. He also placed reliance on two judgments of the Hon'ble Supreme Court subsequent to Uttam's case, namely Chottan Ben and another vs. Kiritbhai Jalkrushnabhai Thakkar and another reported in AIR 2018 SC 2447 and another recent judgment of the Hon'ble Supreme Court delivered on 1st July, 2019 in the case of Doddamuniyappa (Dead) through LRs. vs. Muniswamy and others reported in 2019 (5) CTC 369. He emphasised on the share which a coparcener would take on partition of ancestral property as regards his male issue and further in view of the amendment made to Section 6 of Hindu Succession Act, 1956, (hereinafter referred to as 'Act' for the sake of brevity) with effect from 09.09.2005, a daughter is also
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entitled to a share equal to that of a son, if the father and the daughter are both alive as on 09.09.2005, vide Prakash vs Phulawati reported in (2016) 2 SCC 36. He submitted that the trial Court has ignored elementary principles of Hindu Law, that an Undivided Hindu Family is governed by Mitakshara Law and also the principles of partition. Hence, the impugned judgment may be set aside and the appeal be allowed.
17. Having heard learned counsel for the respective parties, the following points would arise for our consideration:
i) Whether the trial Court was justified in answering issue No.6 in the negative and consequently by exercising power under Order VII Rule 11(a) of CPC, rejecting the plaint ?
ii) What order ?
18. In the instant case, the relationship between the parties are not in dispute. As narrated above, S.M.Chandrashekar and his wife S.C.Saroja had four children, namely, Indu Prasannashankar, M.C. Dayashekar,
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Savitha Nagesh and S.C. Sharathshekar - two sons and two daughters. The plaintiffs are the son and daughter of M.C. Dayashekar - defendant No.1 in the suit. It is also not in dispute that 'A' schedule properties were allotted to defendant No.1 - M.C. Dayashekar, at a partition which took place between his father and brothers on 03.12.1984. According to the plaintiffs, 'B' schedule properties have not been partitioned and continue to be joint family properties. It is not in dispute that the plaintiffs and defendant No.1 formed a Hindu undivided family. It is also not in dispute that certain items of 'B' schedule properties have been alienated by defendant No.1 to third parties, who were also defendants in the suit.
19. We have perused the impugned judgment of the trial Court. As already noted, the trial Court considered issue No.6 as a preliminary issue. The said issue reads as under:
"6. Whether the plaintiffs have cause of action to file the suit ?"
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20. After considering certain decisions touching upon the Joint Hindu Family, Hindu Coparcenarary as well as Section 6 of the Act, as amended on 09.09.2005, the trial Court held that when the partition took place between S.M.Chandrashekar and his sons, including defendant No.1 herein, the plaintiffs were not born. They are the grand children of S.M. Chandrashekar and during their father's lifetime, that is during the lifetime of defendant No.1, they had no right to seek partition. Hence, exercising power under Order VII Rule 11(a) CPC, the plaint has been rejected.
21. Before we proceed to consider the correctness of the same, it would be useful to revisit certain elementary tenets concerning Hindu joint family. We have perused "Hindu Law" by N.R.Raghavachariar and have encapsulated the relevant points form there. A Hindu joint family is one which arises out of a family relationship. The joint family, being a body created in law and not by act of parties, save in the case of adoption or marriage, a stranger would not have any affiliation to such a family. In
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fact, a Hindu undivided family which is the normal condition of Hindu Society is ordinarily joint not only in estate, but also in food and worship. There is commensality in their religious duties and observances and the same is regulated by the members or by the manager of a Hindu joint family who is called a 'Karta'. The joint family status is conferred by birth. Possession of joint family property is only an adjunct of the joint family and it is not necessary for the constitution of joint family that there must be any joint estate. It is not property which knits the family together, but the relationship. A joint family may consist of a single male member and widows of deceased male members and property of the family does not cease to belong to the joint family merely because the family is represented by a single coparcener who possesses rights which an absolute owner of property may possess. The joint family cannot be said to come to an end even when the last surviving male member thereof dies, leaving only some widows, the reason being, it is possible for any of the widows to make an adoption and recommence a joint family consisting of male members as
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before, and as long as there is such a possibility, the joint family does not end.
22. While a joint family is a larger body consisting of members, a coparcenary is a narrower body and consists of only those persons who have, by birth, an interest in the property of the holder for the time being and can enforce a partition whenever they like, as held in Gowli Buddanna v. CIT, reported in AIR 1966 SC 1523. The joint family commences with a common ancestor and progresses through the male i.e., son, grandson or a great grandson who could be a coparcener of right, title and interest in the joint family property. Of course, we are conscious of the fact that by virtue of the amendment made to Section 6 of the Act, a daughter is also now considered to be a coparcener, and though the said amendment is in the context of succession, it is not a bar for a daughter to seek partition of the ancestral or joint family property. In fact, by conferring a status of coparcener on a daughter, all rights and liabilities which are applicable to a male coparcener would be equally
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applicable to a female coparcener as enunciated under Section 6 of the Act, subsequent to its amendment. Of course, the said rights are, however, regulated by the recent decision of the Hon'ble Supreme Court in the case of Prakash vs. Phulawathi, (supra). But, the instant case does not touch upon the controversy which arose in Prakash vs. Phulawathi, (supra) except to the extent of observing that the dictum of the Hon'ble Supreme Court in Prakash vs. Phulawathi (supra) enables and empowers the second plaintiff, being the daughter of the first defendant, to seek a partition in respect of the suit schedule properties which she would not have otherwise been entitled to seek as a coparcener.
23. Under the classical Hindu Law, a Hindu coparcener has seven essential characteristics, namely, (1) The lineal male descendants up to the third generation acquire an independent right of ownership by birth and not as representing their ancestors; of course the aforesaid principle would call for a slight modification as indicated above, in the sense that, a living female daughter also
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acquires the right by birth, having regard to the amendment made to Section 6 of the Hindu Succession Act with effect from 09.09.2005 and the said Section being interpreted in the case of Prakash vs. Phulawathi (supra). We hasten to add that, while a male member up to the third generation acquires an independent right, a female member, that is a daughter up to the third generation does not acquire such a right. We further hasten to add that the reason for making the amendment to Section 6 of the Act is in the context of succession, so as to grant right, title and interest to a daughter equally to that of a son in a Mitakshara coparcenary property, on the death of a coparcener. (2) The members of the coparcenary have the right to work out their rights by demanding partition; (3) Until partition, each member of the coparcenary, including a daughter, has got ownership extending over the entire property conjointly with the rest and so long as no partition takes place, it is difficult for any coparcener to predicate the share which he or she might receive; (4) As a result of such co-ownership, the possession and enjoyment of the property is common;
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(5) There can be no alienation of the property by any member without the concurrence of the other coparceners unless it be for legal necessity; of course, this restriction has also been modified by virtue of Section 30 of the Act which is capable of being so disposed of by him or by her in accordance with the provisions of the Indian Succession Act, 1925,. (6) The interest of a deceased member survives on his death and merges in the coparcenary property; this principle has also been modified by virtue of Section 6 of the Act, wherein, if a male belonging to a Hindu family governed by Mitakshara law, dies leaving behind female heirs of Class I, then the succession is not by survivorship, but under the provisions of Section 6 of the Act. The object being , the female members in Class I would get a share also. Thus, a widow of the male Hindu is entitled to get a share in the share of her husband while his daughters would get a share equal to that of his sons if his death i.e. of the male coparcener has occurred on or after 09.09.2005. (7) As a logical corollary and counter- balance to the principle that the son from the moment of his birth acquires an interest in joint family property, a
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pious obligation is imposed on him to pay his father's debts incurred for a purpose which is not 'avyyavaharika' (CªÀåªÀºÁjPÀ), i.e. illegal or immoral. Of course, the doctrine of pious obligation has also undergone a modification by virtue of the amendment to Section 6 of the Act. The same is with effect from 09.09.2005 i.e., the date of commencement of the amended Section 6, in as much as, a similar liability is cast on a daughter who succeeds under Section 6 of the Act by virtue of the amendment enforced from 09.09.2005. Thus, by virtue of the Act, the succession by way of survivorship has been substituted, where a male Hindu governed under Mitakshara law dies leaving behind female heirs as stated in class I of the Act and with effect from 09.09.2005, the daughters are entitled to a share equal to that of the sons of the deceased coparcener, on the death of the said coparcener, if both were alive on 09.09.2005. Thus, as a result, no individual member, while the family remains undivided, can predicate in the joint and undivided property that he has a certain or definite share, either in the corpus or in the income. Merely because he has no definite share he
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cannot be considered to hold the entire property although he may be in joint possession thereof as a member. Till a partition takes place, his interest remains a fluctuating interest, enlarged by deaths and diminished by births in the family. In every coparcenary, the son, grandson or great-grandson obtains an interest by birth in the coparcenary property so as to be able to control and restrain improper dealings with the property by another coparcener.
24. Further, property under Hindu law can be classified under two heads : (1) coparcenary property, (2) separate property. Coparcenary property is again divisible into (i) ancestral property and (ii) joint family property which is not ancestral. The latter kind of property consists of property acquired without the aid of ancestral property and property acquired by the individual coparceners without such aid but treated by them as property of the whole family. Joint family property can be held by two or more persons jointly. Such concept is also applicable in English law. Two strangers would also acquire a property
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jointly, in which case, it would become joint property. Two members of a family can, with their separate and independent incomes also acquire a property jointly, in which case it becomes a joint property only. In other words, two complete strangers may be joint tenants according to English law, but it does not become joint family property. There is an essential qualification i.e., the property must have been acquired jointly by persons belonging to joint family and with the aid of joint family funds or joint ancestral property.
25. The other kind of property is joint ancestral property. In the said case, the property is qualified in a two-fold manner, it must be a joint family property and it must also be ancestral. In other words, there must have been a nucleus of joint family property before an ancestral joint family property can come into existence, because the word ancestral connotes descent and hence pre-existence. But where there is an ancestral joint family property, every member of the family acquires in it a right by birth which cannot be defeated by individual alienation or disposition
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of any kind, except under certain peculiar circumstances. This is equally true of joint family property. Where a sufficient nucleus in the possession of the members of a joint family has come to them from a paternal ancestor, the presumption is that the whole property is ancestral and any member alleging that it is not, will have to prove his self-acquisition. Where property is admitted or proved to have been joint family property, it is subject to exactly the same legal incidents as the ancestral joint family property, but differs radically in origin and essential characteristics from the joint property of the English law. Thus, coparcenary property includes (1) ancestral property, (2) acquisitions made by the coparceners with the help of ancestral property, (3) joint acquisitions of the coparceners even without such help provided there was no proof of intention on their part that the property should not be treated as joint family property, and (4) separate property of the coparceners thrown into the common stock.
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26. Ancestral property is also a term which has a special meaning in Hindu law. It does not mean property inherited from any ancestor. It is only when the property is inherited by a male from his father, father's father and father's father's father that it becomes ancestral property. Such inheritor's son, son's son and son's son's son i.e. great-grandson gets an interest in it by birth and can interdict improper alienations by the inheritor, whose position in respect of that property, though it will otherwise be absolute, is reduced in the presence of such descendants to that of an owner with restricted rights. Besides, it is absolutely immaterial whether the sons were born to the inheritor before or after the inheritance fell in. But if the property is inherited from a paternal ancestor beyond the third degrees, then the property is not ancestral as against the inheritor's sons and the inheritor has absolute powers of disposal over it. So also, if the inheritor has neither a son, son's son, nor son's son's son, the property is absolute in the inheritor's hands even though he may have other relations. Also property which comes to an inheritor from one of his three immediate
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paternal ancestors as absolute property owing to the absence of sons, grandsons or great-grandsons, but becomes ancestral property with the birth of any of them, though an alienation made by the inheritor before such birth, cannot be impeached. The character of ancestral property is not taken away by there being a partition of the property in the family of the inheritor, and though a share of ancestral property allotted to a coparcener on partition will be his separate property as regards others, but it will be ancestral property as against the allottee's son, grandsons and great-grandsons whether born before or after the partition. Further, all properties acquired either with the income of ancestral property or the proceeds of sale of such property by the sole surviving coparcener is held to be an ancestral asset on the birth of a son subsequently or if a son is adopted by the widow of a deceased coparcener. A purchase made with money borrowed on the security of ancestral property belongs to joint family.
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27. As opposed to the aforesaid kinds of property, separate property may also be acquired by a member of a Hindu joint family out of his own funds while remaining a member of a joint family. Such property can be held by him absolutely and free of all claims from the rest of the coparceners and is known as his separate or self-acquired property.
28. Thus it would be relevant to note that the share in the ancestral estate which a coparcener gets on partition with his co-sharers is his separate property as against the coparcener from whom he separates, though as against his own male issues who are born after partition or who were born before but who do not get themselves separated from him, the property has still the character of ancestral property in which they take an interest by birth. The ancestral character of the property as against the sons of a coparcener, who obtains it on partition does not become altered so as to make the property the coparcener's self-acquired property as against them.
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29. Coparcenary property held by the sole surviving coparcener is his absolute property which he may dispose of by gift or Will so long as he has no son, grandson or great-grandson. In the case of a Will made by him, if subsequent to his making the Will and prior to his death he adopts a son or a son is born to him or to a pre- deceased son and is alive at the time of his death, the Will becomes inoperative in respect of the coparcenary property, though if that son dies during the testator's lifetime the Will takes effect as if no son was ever born. However, a Will by a sole surviving coparcener is inoperative on the birth of a post-humous son either to him or to a predeceased coparcener and the whole of his property, including coparceners property passes to his heirs. Considering the position of a sole surviving coparcener, the Board of the Judicial Committee, speaking through Viscount Simonds for the Board of the Judicial Committee - Lord Reid, Lord Cohen, Lord Somerwell and Mr. S.M.D. De Silva being the other members, approved the observation of Gratiaen, J., Attorney-General of
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Ceylon vs. Arunachalam Chettiar, reported in (1957) A.C. 540, which is to the following effect :
"It would be a mockery of the undivided family system if any temporary reduction of the coparcenary unit to a single individual were to convert what was previously joint property belonging to an undivided family into the separate property of the surviving coparceners."
Of course, pursuant to enforcement of the Act, on a notional partition under Section 6 of the Act, the share of the deceased father is divided as if it is his separate property.
30. The position of a sole surviving coparcener is thus a peculiar one and once such sole surviving coparcener has a son, the property in the hands of the sole surviving coparcener which devolved at a partition, either ancestral or joint family property, would once again assume the character of a coparcenery property.
31. There are also certain presumptions of jointness with regard to a Hindu family and that the
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jointness subsists till a partition is proved. Once certain property is claimed by a coparcener as his own self- acquired property and the other coparceners of his family claim it as the joint family property, the question arises as to the burden of proof. In this context, it would be useful to reiterate that the joint family is the normal condition of Hindu society and every such family is ordinarily joint not only in estate, but in food and worship. Hence, a Hindu family must be presumed to remain joint and the burden of proving separation is upon the person alleging it. It is not open to one member of the joint family to separate himself from only one other member and remain joint with the others. A coparcener cannot be joint with some and separate from others. But there is no presumption that because a family is joint, it possesses any joint property. Persons who assert that any property is joint family property should prove, either it was inherited from a common ancestor or that it was acquired with the help of joint family funds. Joint property standing in the names of different members of the family do not cease to be joint family property, unless proved otherwise. Further, where
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a Hindu family was shown to have been once joint, the presumption is that it continues to be joint even afterwards and hence where property is shown to have been once the property of the joint family, it must be presumed to continue joint till the contrary is shown. Where, however, it is shown that a partition had already taken place, the burden of showing that a certain family property continues to be held in coparcenary is upon the person alleging it. If a suit for partition is dismissed, then the presumption is that the family is still joint. We have only stated what is necessary for this case.
32. One of the incidences of coparcenary rights is the right of a coparcener to seek partition. As already noted, in a Hindu joint family governed by the Mitakshara law, there is unity of ownership of the family property and commensality of its enjoyment. Cesser of this unity and commensality means cesser or severance of joint family status or partition irrespective of whether it is accompanied or followed by a division of properties by metes and bounds. Partition means defining the share in a
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numerical division of the property which has been held by an undivided family jointly without predicate and a definite share.
33. Partition does not simply mean division of property into specific shares. It covers both division of title and division of property. However, partition consists of two stages : the first is a matter of individual decision to sever from the joint family property when a member of a joint family unequivocally manifests his intention by words or conduct to separate himself from the joint family properties. The same would result in separation of his title and severance of his interest. The next stage is division of the property by metes and bounds. Once a member of a Hindu undivided family indicates his intention to separate from his co-sharers, neither the co-sharers can question it nor can the Court examine his conscience to find out whether his reasons for separation were well founded or sufficient. In the absence of intention to separate, mere fact that the shares of the coparceners have been ascertained does not lead to the inference that the family
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has separated. After a division of right and interest among the coparceners and before any actual division by metes and bounds, their position is that of tenants-in- common and the interest of such a divided coparcener does not go to the other coparceners by right of survivorship. Unless the share of each member is severed by metes and bounds, a coparcener cannot however be said to have lost the entire interest in the property. A Hindu father, joint with his sons, and governed by Mitakshara law can partition the ancestral or joint family properties between himself and his sons inter se, even without their consent and divide the properties by metes and bounds and allocate shares to each of his sons. Such an act on the part of the father would result in disruption of joint family status and there could be a simultaneous partition of the said status and division of properties by metes and bounds, as in the instant case, when 'A' schedule property was allotted to defendant No.1 by his father along with his other brothers. It is competent to a father to make a partition during his life, and the partition so made by him binds his sons. The said right of a father
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is accrued to him being the 'karta' of a family and is thus binding on his sons.
34. With the aforesaid nuances on the Hindu Law and the Law of Partition, what ensues is the fact that in the case of a partition by a father being the 'karta' of a family, the share which devolves on his son is ancestral property. It may be that a son is a sole surviving coparcener at the time of partition and does not have any issues, male or female, but if any son or daughter is born to him subsequently, then he cannot remain sole surviving coparcener as the son or daughter would acquire right, title and interest in such ancestral or joint family property by birth. Such a son or daughter would also have a right to claim partition. But in the instant case, the trial Court while answering issue No.6 as a preliminary issue, has held that the plaintiffs who are the son and daughter of defendant No.1 have no cause of action to file the suit, since they had not been born on 03.12.1984, the date when 'A' schedule property fell to his share. Such a
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conclusion is erroneous and contrary to the settled position of law which have been discussed above.
35. Apart from that, it would be relevant to rely on two decisions of the Hon'ble Supreme Court. The first is the case of SHYAM NARAYAN PRASAD v/s KRISHNA PRASAD AND ORS. reported in (2018) 7 SCC 646. At paragraphs 12 and 13 it has been stated as under :
"12. It is settled that the property inherited by a male Hindu from his father, father's father or father's father's father is an ancestral property. The essential feature of ancestral property, according to Mitakshara Law, is that the sons, grandsons, and great grandsons of the person who inherits it, acquire an interest and the rights attached to such property at the moment of their birth. The share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issue. After partition, the property in the hands of the son will continue to be the ancestral property and the natural or adopted son of that son will take interest in it and is entitled to it by survivorship.
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13. In C.Krishna Prasad v. C.I.T, Bangalore, 1975 (1) SCC 160, this Court was considering a similar question. In the said case, C.Krishna Prasad, the appellant along with his father Krishnaswami Naidu and brother C.Krishna Kumar formed Hindu undivided family up to October 30, 1958, when there was a partition between Krishnaswami Naidu and his two sons. A question arose as to whether an unmarried male Hindu on partition of a joint Hindu family can be assessed in the status of undivided family even though no other person beside him is a member of the family. It was held that the share which a coparcener obtains on partition is ancestral property as regards male issue. It was held as under:
"The share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issue. They take an interest in it by birth, whether they are in existence at the time of partition or are born subsequently. Such share, however, is ancestral property only as regards his male issue. As regards other relations, it is separate property, and if the coparcener dies without leaving male issue, it passes to his heirs by succession (see p. 272 of Mulla's Principles of Hindu Law, 14th Ed.). A
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person who for the time being is the sole surviving coparcener is entitled to dispose of the coparcener property as if it were his separate property. He may sell or mortgage the property without legal necessity or he may make a gift of it. If a son is subsequently born to him or adopted by him, the alienation, whether it is by way of sale, mortgage or gift, will nevertheless stand, for a son cannot object to alienations made by his father before he was born or begotten."
(emphasis supplied)
36. A recent judgment of the Hon'ble Supreme Court in the case of Doddamuniyappa (dead) through LRs. vs. Muniswamy and others (disposed of on 01/07/2019), has also stated in paragraph 23 as under:
"23. It is well settled and held by this Court in Smt.Dipo Vs. Wassan Singh and Others (supra) that the property inherited from the father by his sons becomes joint family property in the hands of the sons. The relevant portion is as under:-
2. "............. Property inherited from paternal ancestors is, of course, "ancestral property"
as regards the male issue of the propositus, but it is his absolute property and not ancestral property as regards other
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relations. In Mulla's Principles of Hindu Law (15th Edn.), it is stated at p. 289:
". . . if A inherits property, whether movable or immovable, from his father or father's father, or father's father's father, it is ancestral property as regards his male issue. If A has no son, son's son, or son's son's son in existence at the time when he inherits the property, he holds the property as absolute owner thereof, and he can deal with it as he pleases . . . .
*** A person inheriting property from his three immediate paternal ancestors holds it, and must hold it, in coparcenary with his sons, sons' sons and sons' sons' sons, but as regards other relations he holds it, and is entitle to hold it, as his absolute property."
Again at p. 291, it is stated:
"The share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issue. They take an interest in it by birth, whether they are in existence at the time of partition or are born subsequently. Such share, however, is ancestral property only as regards his male issue. As regards other relations, it is separate property, and if the coparcener dies without leaving male issue, it passes to his heirs by succession."
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37. In the said case, reference has been made to Smt. Dipo vs. Wassan Sing and others, reported in 1983(3) SCC 376. The aforesaid two decisions of the Hon'ble Supreme Court could be clearly distinguished from another judgment in the case of Uttam (supra). In Uttam (supra), the controversy was with regard to the applicability of Section 6 of the Act subsequent to the demise of one of the coparceners of the undivided family. It was in the context of succession and partition that the Hon'ble Supreme Court applied Section 8 and the schedule of the Act and opined as under in paragraph 20 as under :
"20. Some other judgments were cited before us for the proposition that joint family property continues as such even with a sole surviving coparcener, and if a son is born to such coparcener thereafter, the joint family property continues as such, there being no hiatus merely by virtue of the fact there is a sole surviving coparcener. Dharma Shamrao Agalawe v. Pandurang Miragu Agalawe (1988) 2 SCC 126, Sheela Devi v. LAl Chand, (2006) 8 SCC 581, and Rohit Chauhan v. Surinder Singh (2013) 9 SCC 419, were cited for this purpose.
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None of these judgments would take the appellant any further in view of the fact that in non of them is there any consideration of the effect of sections 4, 8 and 19 of the Hindu Succession Act. The law, therefore, insofar as it applies to joint family property governed by the Mitakshara School, prior to the amendment of 2005, could therefore be summarized 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 coparcenary (vide Section 6).
(ii) To proposition (i), an exception is contained in Section 30 Explanation of the Act, making it clear the notwithstanding anything contained in the Act, the interest of a male Hindu in Mitakshara coparcenary property is property that can be disposed 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
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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."
38. But in the instant case, defendant No.1 who was allotted 'A' schedule property under a partition dated 03.12.1984 made by his father, between him and his brothers, though at the time of partition, was a sole
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surviving coparcener, nevertheless lost the said status on the birth of his son and daughter subsequently. He no longer remained a sole surviving coparcener and the property was not akin to his separate property. On the birth of the plaintiffs, namely his son and daughter, 'A' schedule property continued in the nature of an ancestral property which devolved upon them by virtue of birth which took place subsequent to 03.12.1984 and the plaintiffs thus had the right, title and interest in the said property by birth. Therefore, the right to seek partition of the said property. Hence, the judgment relied upon by learned counsel for respondent Nos. 2 and 3 in Uttam's case is not relevant as it does not apply to the facts of the present case.
39. In this context it would be useful to refer to the case of Anthony Swamy vs. Chinnaswamy reported in (1969) 3 SCC 15, wherein the Hon'ble Supreme Court has categorically stated that in Hindu Law, the moment a son is born, he gets a share in the father's property and becomes a coparcener. Now, by virtue of the amendment
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to Section 6 of the Act, the aforesaid proposition could be equally applied to a daughter. The right of a coparcener in the property accrues to him not on the death of father or inheritance from the father, but with the very fact of his birth. Therefore, whenever a coparcener gets a property from whatever source from the grandfather or from any other source, be it separated property or not, his son (daughter) should have a share in that and it becomes part of the joint Hindu family of his son, grandson and great great-grandson. The only modification that has been made is, when the son inherits property from his father under Section 8 of the Act, in such a case, he takes it in his individual capacity and not as a member of a joint family. Such a situation does not arise in the instant case. Therefore, the trial Court was not right in answering issue No.6 in the negative and exercising power and invoking Order VII Rule 11(a) of CPC to reject the plaint.
40. The impugned judgment and decree dated 28/11/2018 passed in O.S.No.42/2017 is thus set aside. O.S.No.42/2017 is restored on the file of the trial Court.
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Since the plaintiffs and respondent Nos. 2 and 3 are represented by their respective counsel, they are directed to appear before the trial Court on 30th March, 2020, without expecting any separate notices from the said Court. The trial Court shall however issue notices to all other respondents who are not represented in this appeal and thereafter, dispose of the suit in accordance with law.
Appeal is allowed and disposed of in the aforesaid terms.
Parties to bear their respective costs.
Sd/-
JUDGE Sd/-
JUDGE Mgn/-