Kerala High Court
Smt. Meenakshy And Ors. vs Smt. Vellakutty Alias Kamala And Ors. on 23 March, 1990
Equivalent citations: AIR1991KER148, AIR 1991 KERALA 148
JUDGMENT
1. Defendants c1, 5 and 12 are the appellants. The appeal is direct against the preliminary decree and judgment passed by the Sub Court, Palghat in O.S. No. 76 of 1979. The suit was for partition and separate possession of the plaintiffs 1/6 share in the plaint schedule properties with her share of future mesne profits.
2. Gopalan father of the plaintiff and defendants 2 to 5 and husband of the 1st defendant died in 1968. Plaintiff and defendants I to 5 are his legal heirs. They are governed by Hindu Mithakshara Law being members of the Ezhava community. They belonged to an undivided Hindu joint family. Items 1 to 8 are properties set apart to the share of Gopalan in a partition between himself, his two brothers Keli and legal heirs of Andi Muthuin 1955 and items 1 to 29 were set apart to Gopalan in another partition between himself and Keli and the legal heirs of Andimuthu. Item No. 30 was purchased by Gopalan in 1963 from out of the income from items 1 to 29. After the death of Gopalan the properties were held jointly by the plaintiff and the defendants 1 to 5 and they were looking after and managing the properties. On these allegations the plaintiff filed the above suit for partition and separate possession of her alleged 1/6 share.
3. Defendants 1 and 5 resisted the claim. They filed ajoint written statement contending that there was no joint family as stated in the plaint and the joint family of Gopalan consisted of Gopalan and the 5th defendant alone. Plaint A Schedule items 1 to 29 were partitioned by Gopalan his brother Keli and the legal heirs of Andimuthu and those items were allotted to the branch of Gopalan. Gopalan's father Panu cultivating the lands of Subramania Iyer of Coyalmannam and after his death the properties were being cultivated by his children, and subsequently they were surrendered to the jenmi and in the same year they got assignment of the kanam right as per partition in 1955. consideration for the assignment came out of the income derived from the properties taken on lease by Panu and the consideration obtained for its surrender. Items 9 to 29 were acquired out of the income from items 1 to 8. Item 30 was purchased with the income of the properties set apart by Gopalan. After the death of Gopalan there was no joint possession by plaintiff and defendants 1 to 5 and the entire properties were held by the 5th defendant alone. As all the properties had been treated and held as joint family properties, Gopalan had only 1/2 rights over the suit properties. Plaint B schedule movables never belonged to Gopalan. Gopalan had already paid Rupees 6,000/- by executing a promissory-note in favour of one Erumakkad Gopalan and Eravakkad Andu, and he had also executed hypothecation bonds for discharge of some of his liabilities. Defendants also had executed documents. Therefore the plaintiff was not entitled to 1/6 share in the property and she was only entitled to 1 /12 share. An amount of Rs. 1,000/- was paid to defendants 2 to 4 and the plaintiff each as their shares in the property and therefore the plaintiff was not entitled to claim any share. Some of the properties were assigned to discharge the debts of Gopalan. Mesne profits claimed was very excessive and in the circumstances the plaintiff was not entitled to any relief. Defendants 2 to 4 also filed written statement supporting the contentions of defendants 1 and 5.
4. On a consideration of the oral and documentary evidence in the case, the Court below held that items 1 to 29 are not joint properties belonging to Gopalan and 5th defendant but those properties belonged to Gopalan and that therefore the plaintiff was entitled to 1/6 share. The Court below also held that the plaintiff was not bound by assignments in favour of defendants 6 to 12 but gave a direction that the said properties to be set apart to the share of defendants 1 and 5. The Court below also held that there was no evidence to show that Gopalan had any debts and that those debts were discharged by defendants 1 and 5 and 'in that view of the matter, the Court below passed a preliminary decree for partition of plaint A schedule property into six equal shares and for allotment of one such share to the plaintiff with mesne profits from the date of the suit. It was also ordered that the quantum of mesne profits will be determined in the final decree proceedings and the costs of defendants 1 and 5 was also ordered to come out of the estate.
5. In this appeal, learned counsel for the appellant has challenged the finding of the Court below. Though the learned counsel contended that all items of A schedule property belonged to the joint family consisting of Gopalan and the 5th defendant, learned counsel was not able to substantiate that wide contention. The most substantial contention raised by the learned counsel is that atleast as far as items 1 to 8 are concerned, Gopalan treated the property as belonging to joint family of Gopalan and the 5th defendant and therefore in any event, the plaintiff was entitled only to 1 /12 share in those properties. I feel the learned counsel is well-founded in this contention. Ext. Bl is a mortgage deed executed by Gopalan for himself and his minor son Chithambaram the 5th defendant, in favour of one Velappan for a mortgage amount of Rs. 2,300/-. The amounts were stated to be the amounts borrowed on behalf of the joint family. It is recited in Ext. B1 that the properties covered by Ext. Bl were set apart in partition to Gopalan and his son and they were in possession and enjoyment of the property as kanam holders. It is also recited therein that charge was created on the rights of the executants namely Gopalan and the 5th defendant in the property. On the basis of this, learned counsel for the appellant argued that whatever be the nature of the acquisition of this property, the intention of Gopalan as unequivocally expressed in Ext. Bl is to treat the property as belonging to joint family of Gopalan and the 5th defendant. Learned counsel also broutht to my notice a ruling of a Division Bench of this Court in Chidambara Iyer v. Rama Pattar, 1960 KLT 413. It was held therein that though the properties were the private acquisitions of the father, he voluntarily threw them into the common stock so that the same became subject to all the incidents of joint family property and therefore the son was entitled to claim a half share in them. Counsel for the respondents made an attempt to distinguish the facts of that case by saying that there are several circumstances in that case which would indicate the intention of the father to treat the property as joint family property unlike in the present one. According to the learned counsel, apart from Ext. Bl there is none to indicate any intention on the part of Gopalan to treat the property as a joint family property. Learned counsel for the respondents also invited my attention to a ruling of the Supreme Court in Lakkireddi Chinna Venkata Reddi v. Lakkireddi Lakshmama, AIR 1963 SC 1601. In paragraph 9 of the judgment, the Supreme Court observed as follows (at p. 1604):
"Law relating to blending of separate property with joint family property is well-settled. Property separate or self-acquired of a member of a joint Hidu family may be impressed with the character of joint family property if it is voluntarily thrown by the owner into the common stock with the intention of abandoning his separate claim therein: but to establish such abandonment a clear intention to waive separate rights must be established. From the mere fact that other members of the family were allowed to use the property jointly with himself, or that the income of the separate property was utilised out of generosity to support persons whom the holder was not bound to support, or from the failure to maintain separate accounts, "abandonment cannot be inferred, for an Act of generosity or kindness will not ordinarily be regarded as an admission of a legal obligation."
In my view, in the instant case, the recitals in Ext. Bl unequivocally express the intention to treat the properties covered by Ext. Bl as the properties belonging to the joint family consisted of Gopalan and the 5th defendant. It is a clear case of Gopalan abandoning his separate claim and expressing a clear intention to waive his separate right by conceding that it belongs to joint family, consisting of himself and the 5th defendant. It is not a case where the 5th defendant was merely permitted to use the property jointly with himself or out of Gopalan's generosity the income was permitted to be utilised by the 5th defendant. As a matter of fact, on the date of Ext. Bl the 5th defendant was only a minor. In my view, the decision in Lakkireddi's case AIR 1963 SC 1601 (supra) would only support the contention of defendants 1 and 5. The other decision of the Supreme Court in K. V. Narayanan v. K. V. Ranganadhan, AIR 1976 SC 1715 relied on by the learned counsel for the respondents also is not helpful to him. In that decision the Supreme Court said (at p.1720):
"It is true that property separate or self-acquired of a member of a joint Hindu family may be impressed with the character of joint family property if it is voluntarily thrown by the owner into the common stock with the intention of abandoning his separate claim therin but the question whether a coparcener has done so or not is entirely a question of fact to be decided in the light of all the circumstances of the case. It must be established that there was a clear intention on the part of the coparcener to waive his separate rights such an intention cannot be inferred merely from the physical mixing of the property with his joint family or from the fact that other members of the family are allowed to use the property jointly with himself or that the income of the separate property is utilised out of generosity or kindness to support persons whom the holder is not bound to support or from the failure to maintain separate accounts for an Act of generosity or kindness cannot ordinarily be regarded as an admission of a legal obligation."
In the above decision, the Supreme Court has only reiterated the principle enunciated in ruling in Lakkireddi's case referred to earlier. As already indicated, Gopalan unequivocally expressed his intention to abandon his separate exclusive right and to concede the property as belonging to the joint family consisting of Gopalan and the 5th defendant.
6. In the light of the principles enunciated in the above rulings of the Supreme Court and also in the Division Bench ruling of this Court (supra) it has to be held that Gopalan has expressed his clear intention to treat the property covered by Ext. Bl as the property belonging to joint family consisting of himself and the 5th defendant. It would therefore follow that the plaintiff would be entitled to only 1/12 share in those items of properties.
7. Learned counsel for the appellant next contended that there are certain debts incurred by Gopalan. The only debt proved in the case is one incurred by Gopalan and 5th defendant under Ext. Bl which is discharged as can be seen from Ext. B6. In the circumstances, the Court below was justified in holding that defendants 1 and 5 have not succeeded in establishing that they have discharged any debts due to Gopalan. Similarly, there is also no evidence regarding the borrowal from the wife of the 5th defendant for the treatment of Gopalan. In the circumstances, I confirm the finding of the Court below that no liabilities created by Gopalan have been established in this case.
8. Lastly it was contended that defendants 6 to 12 are entitled to equities as bonafide purchasers. The lower Court has already directed that the properties assigned to defendants 6 to 12 will as for as be set apart to the share of defendants 1 and 5. This direction will stand.
In the result, the preliminary decree passed by the Court below is modified by holding that in items 1 to 8 of the plaint A Schedule property, the plaintiff is entitled only to 1/12 share. In other respects the preliminary judgment and decree are confirmed.
The appeal is allowed to the above extent.
Costs of the plaintiff and defendants 1 to 5 in this appeal will come out of the estate. The other defendants will suffer their costs.