Kerala High Court
Sathi Devi vs T.P.Uma on 8 April, 2005
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW
MONDAY, THE 14TH DAY OF NOVEMBER 2016/23RD KARTHIKA, 1938
RSA.No. 1231 of 2005
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AGAINST THE DECREE AND JUDGMENT IN AS 16/2004 of ADDL.SUB COURT, KOCHI
DATED 08-04-2005
AGAINST THE DECREE AND JUDGMENT IN OS 448/2002 of ADDL.MUNSIFF COURT,KOCHI
DATED 21-10-2003
APPELLANTS/APPELLANTS/DEFENDANTS. 1 TO 4.:
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1. SATHI DEVI, AGED 66 YEARS,
D/O.THAILLOTH BHAVANI AMMA, MANGALASSERRY VEETTIL, RESIDING AT NEAR
ELAMKUNNAPPUZHA SUBRAMANIYA TEMPLE, ELAMKUNNAPPUZHA VILLAGE,
KOCHI TALUK.
2. SREEKALA, AGED 36 YEARS, D/O.SATHIDEVI,
MANGALASSERRY VEETTIL, RESIDING AT NEAR ELAMKUNNAPUZHA SUBRAMANIYA
TEMPLE, ELAMKUNNAPUZHA VILLAGE, KOCHI TALUK.
3. SREEREKHA, AGED 34 YEARS, D/O.SATHIDEVI,
MANGALASSERRY VEETTIL, RESIDING AT NEAR ELAMKUNNAPUZHA SUBRAMANIYA
TEMPLE, ELAMKUNNAPUZHA VILLAGE, KOCHI TALUK.
4. JAYASANKAR, AGED 32 YEARS, S/O.SATHIDEVI
MANGALASSERRY VEETTIL, RESIDING NEAR ELAMKUANNAPUZHA SUBRAMANIYA TEMPLE,
ELAMKUNNAPUZHA VILLAGE, KOCHI TALUK.
BY ADVS.SRI.BABU KARUKAPADATH
SRI.JAGAN GEORGE
SRI.V.I.ABDUL KAREEM
SRI.ABRAHAM K.JOHN
SMT.M.A.VAHEEDA BABU
SRI.K.A.NOUSHAD
SRI.MITHUN BABY JOHN
SRI.J.RAMKUMAR
SMT.AMRIN FATHIMA
SRI.N.SATHEESH KUMAR(NEMMARA)
SRI.P.G.PRAMOD,
SRI. RAHUL KANDAMPULLY
RESPONDENTS/RESPONDENTS/PLAINTIFFS & 5TH DEFENDANT.:
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1. T.P.UMA, AGED 31 YEARS,
D/O.THAILLOTH RADHA, PADATHU VEEDU, NARAKKAL, NARAKKAL VILLAGE, KOCHI.
2. T.P.HAREESH, AGED 29 YEARS,
S/O.THAILLOTH RADHA, PADATHU VEEDU, NARAKKAL, NARAKKAL VILLAGE, KOCHI.
3. MAHESH, AGED 29 YEARS, S/O.CHELLAYIL
VEETTIL INDIRA MANI, PALLURUTHY.P.O, KOCHI TALUK.
R1 & R2 BY ADV. SRI.DINESH R.SHENOY
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 14-11-2016, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
cms
K.ABRAHAM MATHEW J.
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R.S.A.No.1231 of 2005
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Dated this the 14th day of November, 2016
JUDGMENT
The question of law that has been formulated for hearing in this second appeal relates to the consequences that flow from the notional partition contemplated in sub section 1 of section 7 of the Hindu Succession Act.
2. The parties to the suit from which this appeal arises are Nairs who were governed by the marumakkathayam law of inheritance. One Bhavani Amma purchased 57 cents in her name for the benefit of her 'tavazhi' in 1950 by Ext A3 sale deed. The other members of the 'tavazhi' were her four children namely, Vijayan, Radha, Indiramani, and Sathidevi who is the first defendant. Vijayan died unmarried and issueless. Bhavani Amma and others sold 20 cents to the first defendant. The remaining extent of 37 cents was sought to be partitioned in the suit. The plaintiffs are the children of Radha, defendants 2 to 4 the children of the first defendant, Sathidevi, and the fifth defendant the son of Indiramani. These children were born before the Kerala Joint Hindu Family System (Abolition) Act 1975 came into force. By Ext B2 deed Radha and Indiramani released their rights to their mother, Bhavani Amma, and their sister Sathidevi in 1977. Bhavani Amma died on 7.1.2002. She bequeathed her properties to the first defendant by a Will executed on 3.9.1999. R.S.A.No.1231 of 2005 2 The plaintiffs claimed that the property being 'tavazhi' property and they being members of the 'tavazhi', got a right in it on their birth and the right of each member of the 'tavazhi' got defined on the Kerala Joint Hindu Family System (Abolition) Act 1975 came into force on 1.12.1975. According to them, the members of the 'tavazhi', 10 in number, became equally entitled to the property. Since Radha and Indiramani released their rights to Bhavani Amma and the first defendant, and Bhavani Amma later bequeathed her properties to the first defendant, she (first defendant) is entitled to 4/10 shares; the plaintiffs together are entitled to 2/10 shares and defendants 2 to 5 are entitled to 1/10 share each. The plaintiffs prayed for partition of the property and separate possession of their joint share. In the joint written statement filed by defendants 1 to 4 they contended that on Radha and Indiramani's release of their rights in the property in 1977 in favour of their mother, Bhavani Amma and sister Sathidevi, who is the first defendant, Bhavani Amma and the first defendant became the absolute owners of the property and since Bhavani Amma later bequeathed her property to the first defendant, the latter became the sole owner of the property. The first defendant has transferred 10.750 cents to the second defendant by settlement deed No.2040 of 2002 and 23.750 cents to the third defendant by settlement deed No.2039 of 2002. Defendants 1 to 4 prayed for dismissal of the suit. R.S.A.No.1231 of 2005 3
3. No oral evidence was adduced by any of the parties. Exts A1 to A4 and B1 and B2 were marked at the trial. The lower court observed that there was no evidence that Bhavani Amma's son, Vijayan, died after the coming into force of the Hindu Succession Act, 1956. It held that on the coming into force of the Kerala Joint Hindu Family System (Abolition) Act, 1975 Bhavani Amma and her three children and six grandchildren became equally entitled to the property, the share of each of them being 1/10. It directed allotment of two shares to the plaintiffs. But it did not declare the shares of the defendants in the property. Accordingly, it passed a preliminary decree. Defendants 1 to 4 challenged it in appeal. The learned Sub Judge who heard the appeal held that the appeal was without merit and dismissed it. Aggrieved by it defendants 1 to 4 have come up in appeal.
4. The appellants, who are defendants 1 to 4 in the suit, contended that Vijayan died after the coming into force of the Hindu Succession Act and under section 7(1) read with section 8 of the Act, his right in the property devolved on his mother, Bhavani Amma, alone. The submission of Sri Babu Karukappadath, learned counsel for the appellants, is that the notional partition contemplated in section 7(1) of the Hindu Succession Act resulted in disruption of the joint family and the members became tenants in common after the notional partition and the allotment made by the courts below is incorrect. R.S.A.No.1231 of 2005 4
5. The precise question that comes up for consideration in this second appeal is whether with the notional partition contemplated in section 7(1) of the Hindu Succession Act the joint family ceased to exist and the share of each member became her absolute property.
6. The date of death of Vijayan, the only son of Bhavani Amma, is crucial. No evidence was adduced either in the trial court or in the appellate court to prove it. But in this court the appellants produced two documents to prove it and they were marked Exts B3 and B4 with consent. Ext B3 is a certified copy of the mortgage deed executed in 1960 by Bhavani Amma and her children including Vijayan, which proves that he was alive in 1960. That he was alive on 9.2.1961 stands proved by Ext B4 certified copy of the sale deed executed by one Plemana Silva in favour of Bhavani Amma and all her children including Vijayan. That the death of Vijayan took place before 1968 is clear from Ext B1 sale deed executed in that year by Bhavani Amma, Radha and Indira in favour of the first defendant because it states that Vijayan was dead. There cannot be any doubt that Vijayan died after the coming into force of the Hindu Succession Act 1956 and before 1968.
7. Section 7(1) and section 8 of the Hindu Succession Act, which are relevant for this appeal, run as follows:
7. Devolution of interest in the property of a tarwad, tavazhi, kutumba, R.S.A.No.1231 of 2005 5 kavaru or illom-(1) When a Hindu to whom the marumakkattayam or nambudri law would have applied if this Act had not been passed, dies after the commencement of this Act, having at the time of his or her death an interest in the property of a tarwad, tavazhi or illom, as the case may be, his or her interest in the property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not according to the marumakkattayam or nambudri law.
Explanation-For the purposes of this sub- section, the interest of a Hindu in the property of a tarwad, tavazhi or illom shall be deemed to be the share in the property of the tarwad, tavazhi or illom, as the case may be, that would have fallen to him or her if a partition of that property per capita had been made immediately before his or her death among all the members of the tarwad, tavazhi or illom, as the case may be, then living, whether he or she was entitled to claim such partition or not under the marumakkattayam or nambudri law applicable to him or her, and such share shall be deemed to have been allotted to him or her absolutely.
8. General rules of succession in the case of males-The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter-
(a) firstly, upon the heirs, being the relatives specified in class I of the Schedule;
(b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule;
(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and
(d) lastly, if there is no agnate, then upon the cognates of the deceased.
8. Since Vijayan died intestate after the coming into force of the Hindu Succession Act, the devolution of his right in the 'tavazhi' property was governed by section 7(1) of the Act. It is R.S.A.No.1231 of 2005 6 deemed that a notional partition took place immediately before his death. At the time of his death, apart from him there were four members in the 'tavazhi' namely, his mother, Bhavani Amma, sisters Radha, Indiramani and the first defendant. The share that would have been allotted to each of them was 1/5 if a partition per capita had been effected before the death of Vijayan.
9. On the death of Vijayan 1/5 share which would have been allotted to him at the notional partition devolved in accordance with the provisions in section 8 of the Act. It devolved upon his mother, Bhavani Amma, who alone was the relative in class I of the schedule to the Act. Her entitlement to this share is beyond controversy.
10. The submission of the learned counsel for the appellants is that the notional partition contemplated in the explanation to section 7(1) of the Act resulted in disruption of the joint family and the members of the 'tavazhi' became tenants in common. In other words, the argument is that with the notional partition the 1/5th shares that would have been allotted to Bhavani Amma and each of her four children including son Vijayan became their absolute properties and the grandchildren of Bhavani Amma who were born subsequent to it did not obtain any right in them by their birth. He seeks support from section 19 of the Hindu Succession Act, which runs as follows:
19. Mode of succession of two or more heirs-If two or more heirs succeed R.S.A.No.1231 of 2005 7 together to the property of an intestate, they shall take the property-
(a) save as otherwise expressly provided in this Act, per capita and not per stirpes; and
(b) as tenants-in-common and not as joint tenants.
11. The argument advanced by Sri Dinesh R.Shenoy, learned counsel for respondents 1 and 2/plaintiffs is that the notional partition did not bring an end to the joint family and the grandchildren of Bhavani Amma got a right in the property on their birth and the division made by the trial court is correct.
12. Four of the several decisions cited on behalf of the appellants may be considered first. In Velamuri Venkata Sivaprasd (dead) by LRs. v. Kothuri Venkateswarlu (dead) by LRs. and others (AIR 2000 SC 434) the Supreme Court has made the following observation:
"The endeavour of the law court should thus be to give due weightage to the requirement of the Constitution in the matter of interpretation of statues wherein specially the women folk would otherwise be involved. The legislation of 1956 therefore, ought to receive an interpretation which would be in consonance with the wishes and desires of framers of our Constitution".
In Commissioner of Wealth-tax, Kanpur v. Chander Sen (AIR 1986 SC 1753) the apex court has observed:
" It would be difficult to hold today the property which devolved on a Hindu under section 8 of the Hindu Succession Act would be HUF property in his hand. Vis-a-vis his own son, that would amount to creating two classes among the heirs mentioned in Class I, the male heirs in whose hands it will be joint Hindu family R.S.A.No.1231 of 2005 8 property and vis-a-vis son and female heirs with respect to whom no such concept could be applied or contemplated."
This was reiterated in Yudhishter v. Ashok Kumar (AIR 1987 SC 558).
In John Vallamattom and another v. Union of India (AIR 2003 SC 2902) the Supreme Court has frowned upon discrimination against women. The court said:
"The right of equality of women vis-a-vis their male counterpart is accepted worldwide. It will be immoral to iscriminate a woman on the ground of sex. It is forbidden both in our domestic law as also international law. Even right of women to derive interest in a property by way of inheritance, gift or bequeath is statutorily accepted by reason of Hindu Succession Act, 1956 and other enactments. This Court, therefore, while considering constitutionality of S.118 of the Indian Succession Act, is entitled to take those facts also into consideration."
13. The other decisions relied upon by Sri.Babu Karukappadath, learned counsel for the appellants, are Sinnammu Amma v. Narayanikutty Amma (1967 KLT 521), The Inspector Assistant Commissioner of Agricultural Income Tax and Sales Tax, Kozhikode v. V.K.Ramunni Panikkar, Receiver of Zamorin's estate (1972 (4) SCC 435), Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum and others (1978)3 SCC 383), Theja V. Nagarjuna v. Nagarjuna (AIR 2000 SC 3529), Anar Devi and others v. Parmeshwari Devi and others (2006)8 SCC 656). R.S.A.No.1231 of 2005 9
14. In Sinnammu Amma v. Narayanikutty Amma (1967 KLT 521) the question that came up for consideration before the division bench related to the status of the members of a marumakkathayam 'tarwad' after partition is effected. The following observation of division bench in Janakikutty Amma v. Kesavan Unnithan (1958 KLT 881) has been reiterated in it:
"It was contended by the appellant's counsel in this court that once a partition takes place in a marumakkathayam tarwad the jointness of the tarwad is disrupted and that thereafter the members of the tarwad would only be tenants-in-common of such properties as might have been left out of the partition for any reason. Stated as rule of presumption liable to be rebutted there can be no exception to this proposition, but it cannot be accepted as an invariable rule of law. There is nothing in law to prevent the members of a marumakkathayam tarwad from executing a partition deed dividing only some of their tarwad properties and the allottees taking their shares as their separate properties, while, at the same time, providing for the continuance of the joint status of their tarwad and for holding the remaining properties as undivided tarward properties."
The division bench in Sinnammu's case also took notice of the following decision of the Privy Council in Malikharkishan Singh v. Malik Partap Singh (AIR 1938 PC 189).
" Once the shares are defined, there is severance of the joint status. The parties may then make a physical division of the property or they may decide to live together and enjoy the property in common. But the property ceases to be joint immediately the shares are defined, and thenceforth the parties hold it as tenants- in-common. The division bench observed "the non division by mets and bounds of the plaint R.S.A.No.1231 of 2005 10 item in Ext A3 cannot lead to an inference that the members of the tarwad did not want to sever and retain the plaint schedule item as tarwad property."
The above three decisions hold that once the shares of the members of a joint family are defined by a partition their joint status is severed. With regard to the law stated in these decisions there cannot be any quarrel. Whether the notional partition resulted in severance of the status of the parties is the question this court is called upon to answer.
15. The statute which came up for consideration before the Supreme Court in The Inspector Assistant Commissioner of Agricultural Income Tax and Sales Tax, Kozhikode v. V.K.Ramunni Panikkar, Receiver of Zamorin's estate (1972)4 SCC 435) was Kerala Agricultural Income Tax Act 1950. The provision in section 7(3) of the Hindu Succession Act required to be interpreted. The subject matter of the litigation was 'sthanam' property. The observation made by the Supreme Court in that case which is relevant for the purpose of this appeal is as follows:
"Whatever might have been the customary law, section 7(3) of the Hindu Succession Act- the validity of which was not in issue before us- by a fiction deems that the sthanam property stood divided amongst the sthani and the members of his tarwad, a split second before his death. From the language of the section, it is clear that the members of the tarwad took the property as co-owners and not as the heirs of the deceased sthani."
R.S.A.No.1231 of 2005 11 The language of section 7(3) of the Hindu Succession Act, according to the apex court, makes it clear that the members of the tarwad take the property as co-owners and not as the heirs of the deceased 'sthanee'. Section 7(3) runs as follows:
"Notwithstanding anything contained in sub-section (1), when a sthanamdar dies after the commencement of this Act, sthanam property held by him shall devolve upon the members of the family to which the sthanamdar belonged and the heirs of the sthanamdar as if the sthanam property had been divided per capita immediately before the death of the sthanamdar among himself and all the members of his family then living, and the shares falling to the members of this family and the heirs of the sthanamdar shall be held by them as their separate property."
(Some amendments which are not relevant for the purpose of this case were made in this sub section by Kerala Act 28 of 1958).
The provision in this sub section that it shall be deemed that the property was divided per capita immediately before the death of the deceased among himself and all the members of his family then living, and that the heirs of the deceased are held by them as their separate properties is absent in sub section (1) of section 7. This decision of the apex court is of no help in answering the question that has arisen for consideration in this appeal.
16. In Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum and others (1978)3 SCC 383) the property involved in the suit belonged to the joint family of one R.S.A.No.1231 of 2005 12 Khandappa. He died in June 1960 leaving him surviving his wife, two sons and three daughters. They formed a joint family. The father and the two sons constituted a coparcenary. After the death of Khandappa his widow, Hirabai, instituted the suit for partition and separate possession of her share. The consequence of the notional partition contemplated in section 6 of the Hindu Succession Act came up for consideration before the court. It quoted with approval the following famous passage of Lord Asquith in his famous passage in East End Dwellings Co.Ltd v. Finsbury Borough Council:
"If you are bidden to treat an imaginary state of affairs as real, you must also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it; and if the statue says that you must imagine a certain state of affairs, it cannot be interpreted to mean that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs."
17. The Supreme Court held that what is, therefore, required to be assumed is that partition had in fact taken place between the deceased and his coparceners immediately before his death and that the assumption once made is irrevocable. It further held: "All the consequences which flow from a real partition have to be logically worked out which means that the share of the heirs must be ascertained on the basis that they had separated from one another and had received a share in the R.S.A.No.1231 of 2005 13 partition which had taken place during the life time of the deceased." The allotment "has to be treated and accepted as a concrete reality, something that cannot be recalled just as a share allotted to a coparcener in an actual partition cannot generally be recalled. The inevitable corollary of this position is that the heir will get his or her share in the interest which the deceased had in the coparcenery property at the time of his death, in addition to the share which he or she received or must be deemed to have received in the notional partition". Thus the court held that Hirabai was entitled to the share which would have been allotted to her if a partition had taken place before the death of her husband, Khandappa, and also to the share she was entitled to as an heir of Khandappa under section 6 read with section 8 of the Act.
18. The decision in Gurupad Khandappa's case(supra) was followed in Theja V. Nagarjuna v. Nagarjuna (AIR 2000 SC 3529)and Anar Devi and others v. Parmeshwari Devi and others (2006)8 SCC 656). In the former case when a coparcener died, one of his children filed a suit for partition. In the latter case there were only two coparceners, father and son (adopted). The former had two daughters also. The adopted son filed a suit for partition. In both these cases the Supreme Court followed the decision in Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum and others (1978)3 SCC 383). R.S.A.No.1231 of 2005 14
19. In Gurupad Khandappa's case it was held that when a coparcener dies leaving behind a female as his heir, the female heir gets a share in the joint family in the notional partition and another share as his legal heir under section 8 of the Hindu Succession Act. Sri Babu Karukappadath, learned counsel for the appellants, submits that the Supreme Court held so only because the joint family came to an end with the notional partition. No doubt, if the notional partition resulted in disruption of the joint family, Bhavani Amma was entitled to 1/5 share at the notional partition and another 1/5 share as the sole heir of her son, Vijayan and each of her daughters was entitled to 1/5 share as her separate property.
20. Sri Dinesh R.Shenoy, learned counsel for respondents 1 and 2, relies on the decision of a division bench of this court in Commr of Agrl Incometax v. Parameswara Bhat (1980 KLT
276). This court held:
" Section 6 of the Hindu Succession Act does not operate to bring about an automatic disruption of a Hindu Undivided Family on the death of any of its members occurring subsequent to the commencement of the Act and that the only effect of the said section read along with the proviso thereto is to lay down that when a male Hindu dies after the commencement of the said Act leaving behind him a female relative specified in class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the coparcenary property shall devolve by testamentary or intestate succession under the said Act and not by survivorship. It was further clearly laid down R.S.A.No.1231 of 2005 15 by the said ruling that the carving out of the share of the deceased will not affect the continuance of the joint family or bring about its disruption so far as the surviving members are concerned and that they will continue to constitute a joint Hindu family with the senior most member functioning as its Kartha. This decision was subsequently followed by another Division Bench of this Court and the same principle was reiterated in the judgment dated 11th April, 1975 rendered in ITR. Nos.29 and 30 of 1973. In the light of these pronouncements with which we are in respectful agreement it must be held that the view expressed by the Tribunal that on the death of Narasimha Bhat an automatic disruption of the Hindu Undivided Family was brought about by reason of the operation of section 6 of the Hindu Succession act is legally incorrect and unsustainable."
No reference was made by the division bench to the decision of the Supreme Court in Gurupad Khandappa's case.
21. Another decision cited by Sri Dinesh R.Shenoy is State of Maharashtra v. Narayan Rao Sham Rao Deshmukh and others (AIR 1985 SC 716). The Supreme Court after referring to Gurupad Khandappa's case held:
"We have carefully considered the above decision and we feel that this case has to be treated as an authority for the position that when a female member who inherits an interest in the joint family property under section 6 of the Act files a suit for partition expressing her willingness to go out of the family she would be entitled to get both the interest she has inherited and the share which would have been notionally allotted to her, as stated in Explanation I to section 6 of the Act.
But it cannot be an authority for the proposition that she ceases to be a member of the family on the death of a male member of the family whose interest in the family property devolves on her without her volition to R.S.A.No.1231 of 2005 16 separate herself from the family. A legal fiction should no doubt ordinarily be carried to its logical end to carry out the purposes for which it is enacted but it cannot be carried beyond that. It is no doubt true that the right of a female heir to the interest inherited by her in the family property gets fixed on the death of a male member under section 6 of the Act but she cannot be treated as having ceased to be a member of the family without her volition as otherwise it will lead to strange results which could not have been in the contemplation of Parliament when it enacted that provision and which might also not be in the interest of such female heirs. To illustrate, if what is being asserted is accepted as correct it may result in the wife automatically being separated from her husband when one of her sons dies leaving her behind as his heir. Such a result does not follow from the language of the statue. In such an event she should have the option to separate herself or to continue in the family as long as she wishes as its member though she has acquired an indefeasible interest in a specific share of the family property which would remain undiminished whatever may be the subsequent changes in the composition of the membership of the family. As already observed the ownership of a definite share in the family property by a person need not be treated as a factor which would militate against his being a member of a family. There was no action taken by either of the two females concerned in the case to become divided from the remaining members of the family. It should, therefore, be held that notwithstanding the death of Sham Rao the remaining members of the family continued to hold the family properties together though the individual interest of the female members thereof in the family properties had become fixed."
22. Now it may be examined whether the apex court has in Gurupad Khandappa's case held that the joint family would come to an end with the notional partition. The following R.S.A.No.1231 of 2005 17 observation of the court is relevant: "What is therefore required to be assumed is that a partition had in fact taken place between the deceased and his coparcener immediately before his death". So what is assumed is that a partition took place between the deceased and his coparceners. There is no assumption that a partition took place among all the coparceners. It is also to be noted that the court has also observed as follows:
"All the consequences which flow from a real partition have to be logically worked out, which means that the share of the heirs must be ascertained on the basis that they had separated from one another and had received a share in the partition which had taken place during the life time of the deceased."
The separation from one another mentioned in this sentence is separation of the heirs of the deceased coparcener from one another and not separation of the surviving coparceners from one another. Only the share of the heirs of the deceased coparcener is ascertained at the notional partition. Its basis is that the heirs of the deceased coparcener had separated from one another. The surviving coparceners continue to be the members of the joint family. The joint family continues even after the notional partition, but the shares of the heirs of the deceased coparcener get fixed. In a subsequent partition the said heirs will get the share that would have been allotted to them at the notional partition as well as the share of the deceased coparcener. This view is fortified by the decision of the Supreme Court in State of Maharashtra v. R.S.A.No.1231 of 2005 18 Narayan Rao Sham Rao Deshmukh and others (AIR 1985 SC 716).
The relevant observations seen in paragraph 9 of the judgment are quoted below:
"But it cannot be an authority for the proposition that she ceases to be a member of the family on the death of a male member of the family whose interest in the family property devolves on her without her volition to separate herself from the family".
The female member who inherits property of the deceased coparcener has "the option to separate herself or to continue in the family as long as she wishes as its member though she has acquired an indefeasible interest in a specific share of the family property which would remain undiminished whatever may be the subsequent changes in the compensation of the membership of the family. As already observed the ownership of a definite share in the family property by a person need not be treated as a factor which would militate against his being a member of the family."
A division bench of the Bombay High Court in Shivgonda Balgonda Patil and others v. The Director of Resettlement and others (AIR 1992 Bombay 72) took notice of the above Supreme Court decision and observed:
"The Supreme Court negatived the contention that by reason of the death of the Karta there was an automatic partition amongst the members of the joint family. The Supreme Court has held that only the share of the female members in the family properties becomes fixed on the date of death in such circumstances. But there is no partition of the R.S.A.No.1231 of 2005 19 joint family. The contention of the petitioners, therefore, that there was an automatic partition amongst the heirs of Balgonda Patil on his death must be negatived."
A learned single judge of the High Court of Bombay (Aurangabad Bench) also has had occasion to consider the effect of notional partition in Shankarlal Ramprasad Ladha died L.Rs. (Chandrabhaga Shankarlal Laddha and Ors.) v. Vasant Chandidasrao Deshmukh, Renukadas Chandidasrao Deshmukh, Sulochanabai, w/o.Chandidasrao Deshmukh and Laxmikant Chandidasrao Deshmukh (S.A.No.220 of 1988), wherein it is observed:
"The concept of notional partition is a legal device used for purpose of demarcating interest of the deceased when the explanation (I) of section 6 is attracted. Like any other legal fiction, the fiction of notional partition is meant for a specific purpose. It is not a real partition by metes and bounds. It neither effects a severance of status nor does it demarcate the interest of the surviving coparceners or of any females who are entitled to a share on a partition. It is well settled that the share of the deceased coparcener is required to be determined by notionally making allotment of his share which he was entitled to at the partition, on assumption that he was alive on that day and thereafter to divide his share amongst the legal heirs. The joint status of the respondents was not impaired due to the introduction of section 6 of the Hindu Succession Act. There is no reason to hold that the joint Hindu family was disrupted."
23. Though the above decisions of the Supreme Court and the High Court of Bombay were rendered in cases relating to the families governed by mitakshara law, they are applicable to the R.S.A.No.1231 of 2005 20 families governed by marumakkattayam law also as the principle behind sections 6 and 7(1) of the Hindu Succession Act is the same.
24. The legal position may be summarised now:
Under section 7(1) of the Hindu Succession Act when a member of a marumakkathayam 'tarwad' or 'tavazhi' dies intestate his or her interest in the property devolves under the Hindu Succession Act. Under section 8 of the Act, which contains the general rules of succession in the case of death of a male member, the property devolves firstly upon the heirs in class I of the schedule and secondly, if there is no heir of class I, then upon the heirs specified in class II and so on. To determine the share of the heirs specified in the schedule it is necessary to ascertain the share of the deceased. It is for this purpose the deeming provision is made in the explanation to section 7(1) of the Act. At the notional partition only the share of the heirs of the deceased is determined and gets fixed; the share of the other members of the joint family does not get fixed. In other words, the joint family will remain with all its incidents even after the notional partition and the death of the member of the joint family, and the property excluding the share that has gone to the heirs of the deceased member will continue to be joint family property. Since the share of the heirs of the deceased member has already got fixed, they will not be entitled to any more share when a partition of the R.S.A.No.1231 of 2005 21 joint family takes place later though they continue to be in the joint family; only the other members will get a share.
25. The above being the law as interpreted by the Supreme Court, the argument of the learned counsel for the appellants that the notional partition resulted in disruption of the joint family and the daughters of Bhavani Amma became absolute owners of the shares that would have been allotted to them at the notional partition and their children did not get any right in the property cannot be accepted.
26. On the death of Vijayan, Bhavani Amma took the share which would have been allotted to her at the notional partition and another share as his heir. She had no interest in the remaining shares, which belonged only to the other members of the joint family viz. her daughters, whose joint status was not severed with the notional partition. The children of these daughters got a right in the joint family property on their birth. When the Kerala Joint Hindu Family System (Abolition) Act came into force, the three daughters and their children, six in number, alone were entitled to a share in the joint family property. Section 4(2) of the said Act provides:
"All members of a Joint Hindu Family, other than an undivided Hindu Family"
governed by the mitakshara law "holding any Joint Family property on the day this Act comes into force, shall, with effect from that day be deemed to hold it as tenants-in-common, as if a partition of such property per capita had taken place among all the members of the R.S.A.No.1231 of 2005 22 family living on the day aforesaid, whether such members were entitled to claim such partition or not under the law applicable to them, and as if each one of the members is holding his or her share separately as full owner thereof."
27.Though Bhavani Amma acquired ownership of a definite share in the family property on the death of Vijayan and she did not have any interest in the property which remained with the other members of the family, she continued to be a member of the family as she did not separate herself from it. The authority to hold so is the decision of the Supreme Court in State of Maharashtra v. Narayan Rao Sham Rao Deshmukh and others (AIR 1985 SC 716), wherein in paragraph 9 it is observed:
"...........the ownership of a definite share in the family property by a person need not be treated as a factor which would militate against his being a member of a family".
28. Section 4(2) of the Joint Hindu Family System (Abolition) Act does not create a right in the family property in favour of a member unless he or she has an interest in it. The section does not say that all members of the joint family shall be deemed to hold the joint family property as tenants in common; only the members who hold the joint family property became tenants in common at the notional partition contemplated in the section.
29. Bhavani Amma, whose interest had already got fixed on R.S.A.No.1231 of 2005 23 the death of Vijayan, had no interest in the remaining joint family property. Only the other nine members viz. Radha, Indiramani and the plaintiffs and the defendants had interest in it. Each of them was equally entitled to a share.
30. To conclude, in the notional partition contemplated in the explanation to section 7(1) of the Hindu Succession Act Bhavani Amma became entitled to 1/5 share since the total members of the joint family was 5. The deceased Vijayan's share was also 1/5. On his death his share devolved on Bhavani Amma who alone was the heir in class I of the schedule. Thus, she became entitled to 2/5 shares. The remaining 3/5 shares continued to be the joint family property of the three daughters of Bhavani Amma. When the Kerala Joint Hindu Family System (Abolition) Act, 1975 came into force, the plaintiffs, two in number, and defendants 2 to 5 had been born. They having obtained a right on their birth in the joint family property became entitled to an equal share along with their mothers. The share of these nine members viz.Sathidevi (the first defendant), Radha, Indiramani and the plaintiffs and defendants 2 to 5 were 1/9 each in the property of the joint family. Later, when Radha and Indiramani released their rights (1/9 + 1/9) to Bhavani Amma and the first defendant, the share of Bhavani Amma increased to 2/5 +1/9 of 3/5 and of the first defendant to 2/9 of 3/5. In other words, Bhavani Amma became entitled to 18/45 + 3/45 = 21/45. R.S.A.No.1231 of 2005 24 The first defendant's share was 6/45. The share of plaintiffs and defendants 2 to 5 remained at 3/45 each. With the bequest of Bhavani Amma's share to the first defendant the share of the latter increased to 27/45.
31. Thus, when the property is divided into 45 shares the parties to the suit take the following shares: plaintiffs(2) 6 Ist defendant 27
defendants 2 to 5 12
32. Defendants 2 and 3 are children of the first defendant. It is stated that she has gifted 10.750 cents to the second defendant by settlement Deed No.2040 of 2002, and 23.750 cents to the third defendant by settlement Deed No.2039 of 2002. These defendants are entitled to get it from the property that falls to the share of the first defendant. The actual extent of the property available for partition is not yet ascertained. The transfer made by the first defendant is apparently in excess of the extent she would get. If the extent that falls to her share is less than 34.500 cents, it shall be allotted to defendants 2 and 3 proportionate to the extent shown in their settlement deeds, and if it is more, those two defendants shall be given the extent shown in those documents and the excess shall be allotted to the first defendant.
33. As the shares allotted to the parties are not correct, the R.S.A.No.1231 of 2005 25 preliminary decree challenged in the appeal has to be modified.
In the result, this appeal is allowed in part, and a modified preliminary decree is passed in the following terms.
1. The plaint schedule property will be divided by metes and bounds into 45 shares.
2. The plaintiffs together are entitled to 6/45 shares.
3. The first defendant is entitled to 27/45 shares.
4. Defendants 2 to 5 are entitled to 3/45 shares each.
5. If the extent of the property that may be allotted to the first defendant is 34.500 cents, 10.750 cents and 23.750 cents shall be allotted to the second and third defendants respectively. If it is more than that extent, the excess extent shall be allotted to the first defendant, and if it is less, the entire extent shall be allotted to them proportionate to the extent covered by the settlement deeds executed by the first defendant in their favour.
6. The plaintiffs' joint share shall be separated and they shall be put in possession of it.
Sd/-
K.ABRAHAM MATHEW JUDGE cms /True copy/ P.S.to Judge