Karnataka High Court
Umakanta Rao vs Lalitabai on 24 June, 1988
Equivalent citations: ILR1988KAR2067, 1988(2)KARLJ155
JUDGMENT K.A. Swami, J.
1. This appeal by defendant-1 is referred against the Judgment and decree dated 9-9-1976 passed by the learned Civil Judge, Raichur in O.S.No. 34/1974.
2. Respondents 1 and 2 are plaintiffs 1 and 2. Respondent-3 was defendant-2. Plaintiffs 1 and 2 and defendant-1 are the children of defendant-2. Defendant-2 died during the pendency of the appeal. Her name came to be deleted on the basis of the memo dated 23-11-1981 filed by the appellant stating that her heirs are already on record. (Plaintiffs 1 and 2 and defendant-1 are her heirs). Respondent-4 was defendant-3 in the suit. He died after the Judgment of the trial Court and before the appeal was filed. Respondents 4(a) to 4(c) who are the sons of deceased respondent-4 are brought on record as L.Rs. of deceased respondent-4, by the order dated 28-2-1977.
3. In this appeal, the parties will be referred to with reference to the position assigned to them in the trial Court.
4. The trial Court has passed a decree in favour of plaintiffs 1 and 2 for partition and possession of half share in the properties allotted to defendant-1 under Ex.D. 1.
5. The case of the plaintiffs is that Govinda Rao and Gunde Rao were brothers and were the members of a Hindu joint family. The Plaintiffs 1 and 2 are the daughters and defendant-1 is the son of late Govinda Rao. Defendant-2 was the widow of the said Govinda Rao, who died intestate on 24-2-1962 as a member of a Hindu Joint Family leaving behind his undivided interest in the coparcenary properties & plaintiffs 1 and 2 and defendants 1 and 2 as his heirs. Therefore, it is the case of the plaintiffs that they are entitled to 1/4 th share in the joint family properties.
6. The suit properties are mentioned in Schedule-A to the plaint. However from the case of defendants 1 and 3, it is revealed that the joint family properties consisted of both moveable and immoveable properties as mentioned in Schedules I to III to the deed Ex.D. 1 dated 26-3-1962. The properties mentioned in Ex.D. 1 include apart from the properties mentioned in Schedule-A to the plaint some more properties also. As there is no dispute between the parties that the moveable and immoveable properties mentioned in Schedules I to III to the deed Ex.D. 1 are the joint family properties, even though some of them are not mentioned in Schedule-A to the plaint, the trial Court has proceeded on the basis that the moveable and immoveable properties mentioned in Schedules I to III to Ex.D. 1 are the joint family properties. Even before us, arguments are addressed on the above basis by both sides. Therefore, we proceed on the basis that the suit properties are those which are mentioned in Schedules I to III to Ex.D.1 and they are the joint family properties.
7. The relationship between the parties is not in dispute. The following geneology of the family which is not in dispute shows the relationship of parties:
BHIMA RAO ___________________|_________________________ | | | (Wife) | Govinda Rao Gangubai/(Deft.2) Gunde Rao (Died (died on (died during after the Judgment 24-2-62 pendency of of Trial Court & before | Appeal in Oct.81) appeal was | filed. (Deft .3) | | __________________________ | | | | | Umakant Rao Lalitabai Soubhagyavati | D-1 Platt.1 Chakulibai | (Pltff.2) | __________________________________ | | | Prabhanjanth K. Sridhar K. Vidyadhar R-4(a) R-4(b) R-4(c) The further case of the plaintiffs is that there was no partition in the family; that each of the plaintiffs is entitled to 1/8 th share in the suit properties.
8. The plaintiffs filed the suit for partition and separate possession of their 1/8 th share each in the suit properties, on 23-4-1973 in forma pauperis. On 17-8-1974 the trial Court, as a result of an enquiry, held that the plaintiff were paupers and permitted them to prosecute the suit in forma pauperis. Thus on 17-8-1974 the suit came to be registered as O.S.No. 34/1974 in the Court of the Civil judge, Raichur. However, for the purpose of limitation, 23-4-73 is the date of filing the suit.
9. Defendant's 1 and 3 have filed separate written statements.
10. From the aforesaid geneology it is clear that defendant-3 is no other than the paternal uncle of defendant-1. The case of defendant-1 is that he and defendant-3 got divided the joint family properties soon after the death of K. Govinda Rao, the father of defendant-1 and brother of defendant-3. The properties are those which are mentioned in the Memorandum of Partition (Ex.D. 1) and were valued at Rs. 30,000/-. The division took place in the manner set forth in the Memorandum of Partition. The properties worth Rs. 15,240/- were allotted to the share of the 3rd defendant. Properties worth about Rs. 8,853-76 were allotted to the 1st defendant. The assets mentioned in Schedule III to the Memorandum of Parition were required to be recovered by the 3rd defendant and half of it were required to be paid to the 1st defendant. It is the case of the 1st defendant that out of the assets mentioned in Schedule-ill to Ex.D. 1, defendant-3 had paid him only Rs. 500/-. The remaining sum had not been given to him by defendant-3; that defendant-3 was given the properties worth Rs. 15,240/- far more than his share; that defendant-2 was mentally unsound and defendant-1 was looking after her; that he (defendant-1) had spent about Rs. 5,000/- towards repair and reconstruction of the house allotted to him ; that the plaintiffs' share had been retained by defendant-3 in the partition of the suit properties effected between him and defendant-3 and defendant 2's share was retained by him. Therefore, he pleaded that the plaintiffs were not entitled to claim any share from him.
11. The defendant 3 did not dispute the relationship of the parties and also the properties mentioned in the deed of partition (Ex.D. 1) being the joint family properties. His case was that the plaintiffs were entitled to a share in the properties allotted to defendant-1 ; that defendant-1 was allotted half share in the joint family properties as per law; that during the life-time of Govinda Rao, his daughters (Plaintiffs 1 & 2) and son (defendant-1) were married out of the income from the joint family properties whereas his (defendant-3's) daughters were not married and the sons were also of tender age. Therefore, some additional properties were allotted to his share to equalise the share and enable him to perform the marriage of his daughters and bring up his sons; that the plaintiffs were not entitled to any share in the properties allotted to his share; that the plaintiffs were aware of the partition between defendant-1 and 3 as they were present at the partition and they had full knowledge about it; that they did not object about the method of partition or the allotment of shares; that there was no collusion between defendants 1 and 3. He also further denied that he had retained the shares allottable to the plaintiffs, whereas it was the 1st defendant who had retained the shares of the plaintiffs.
12. Defendant-2 remained ex parte.
13. On the basis of the pleadings of the parties, the trial Court framed the following issues:
1) Whether the defendant No. 1 proves that in the division after the death of his father, defendant No. 3 was allotted properties of the shares of the plaintiffs?
2) Whether the defendant No. 3 proves that in the said partition, the shares of the plaintiffs was given to defendant No. 1?
3) Whether the division between defendant No. 1 and 3 is binding on the plaintiffs;
4) What order?
14. In support of the case of the plaintiffs, plaintiff No. 1 was examined as P.W. 1. In support of the case of defendants 1 and 3, defendant-1 examined himself as D.W.1 and produced the deed of partition dated 26-3-1962 as Ex.D. 1. Defendant-3 examined himself as D.W.2.
15. The trial Court held that after the death of the father of defendant-1, there was a partition of the joint family properties as per Ex.D. 1 between defendant-1 and defendant-3, and each of them took half share in the joint family properties; that the snare of plaintiffs 1 and 2 and defendants 1 and 2 together was equal to the share of Govinda Rao; that even though there was no specific mention in Ex.D. 1 that the plaintiff's share was included in the share given to defendant-1, yet having regard to the facts and circumstances of the case, the trial Court was of the opinion that it was to be held that the plaintiff's share was included impliedly and legally in the share allotted to defendant-1; but certainly not in the share allotted to defendant-3; that the Division effected as per Ex.D. 1 was binding upon the plaintiffs; that the plaintiffs having not challenged the partition and having not sought any relief in that regard, it cannot be held or inferred that they have challenged the same; that the mere fact that a little higher share was given to defendant-3, it did not call for interference and as such the partition was binding upon the plaintiffs. Accordingly, the trial Court passed a decree awarding half share in the properties allotted to defendant-1 under Ex.D. 1. Hence this appeal by the 1st defendant.
16. Having regard to the contentions urged on both sides, the following points arise for consideration:
1) Whether Ext.D.1 dated 26-3-1962 is admissible in evidence?
2) Whether the partition effected as per Ex.D. 1 is binding on the plaintiffs & defendant 2? If yes, whether the shares of the plaintiffs and defendant-2 had been included in the shares allotted to defendant-3 and defendant-1 respectively?
3) Whether the plaintiffs are entitled to re-open the partition? If yes, what is the share to which the plaintiffs are entitled to?
4) Whether it is a case in which power under Order 41 Rule 33 of the C.P. Code can be exercised?
5) What decree or order?
POINT NO. 1 :
17. The document Ex.D.1 dated 26-3-1962 was produced through defendant-1 who was examined as D.W. 1. From the evidence of D.W. 1, it is noticed that an objection was raised by the plaintiffs for marking this document. The Court has allowed it to be marked subject to objection by the plaintiffs. Thereafter neither the records reveal nor is there any reference in the Judgment as to what was the nature of the objection raised and the decision of the Court on that objection. However, before us it is urged on behalf of the plaintiffs that Ex.D. 1 is a document which effects partition of immoveable properties worth more than Rs. 100/-. As such it ought to have been registered as required by Section 17(1)(b) of the Indian Registration Act, 1908 and in the absence of such registration, the document could not have been considered as affecting the immoveable property comprised therein and could not have been received as evidence of partition as per Section 49(a) and (c) of the Indian Registration Act.
18. We have perused the document Ex.D. 1. It is not a Memorandum of Partition recording the partition which had taken place anterior to the document. On the contrary, it is a document executed by defendants 1 and 3 and attested by three witnesses. It effects partition of the joint family properties in addition to moveables, the immoveable properties mentioned therein worth more than Rs. 100/- between defendants 1 and 3. As such, as required by Section 17(1)(b) of the Indian Registration Act, it ought to have been registered. Admittedly, the document Exhibit-D. 1 has not been registered. As such it could not have been considered as a valid document affecting the immoveable properties mentioned therein and it could not have been received in evidence to prove the partition. The trial Court has failed to consider this aspect of the matter which was apparent on the face of the document. An objection was also raised on behalf of the plaintiffs when this document was produced through defendant-1. Whenever a document relevant to the issue is produced during the course of trial, admissibility of the document or any other objection relating thereto is raised, the Court must decide the same before admitting the said document in evidence and proceeding further with the trial of the suit. As already pointed out, the trial Court has admitted the document subject to objections by the plaintiffs. It has not even stated the nature of the objections nor it has decided the same either during the course of trial or during the course of Judgment. The document Ex.D.1, as a deed of partition, is inadmissible in evidence inasmuch as it relates to the immoveable property worth more than Rs. 100/- and as it is not registered, it cannot be received as evidence of partition. As such the trial Court ought not to have considered this document as evidence of partition.
19. However, the document contains several other matters which do not require to be registered. It contains the list of moveable and immoveable properties belonging to the joint family consisting of late Sri Govinda Rao, -father of defendant-1 and the plaintiffs and his brother Gunde Rao. It also contains a recital that late Govinda Rao and Gunde Rao (defendant-3) were the members of a Hindu joint family and they possessed moveable and immoveable properties of the joint family mentioned therein. It also contains a declaration of defendants 1 and 3 that they did not want to continue as members of the joint family. In other words, it contains the statement of defendants 1 and 3 as to severance of their status as members of the joint family. A document containing these matters is not required to be registered.
20. Defendants 1 and 3 have admitted the execution of Ex.D. 1 and the properties comprised therein as the joint family properties. The recitals contained in the document are not at all disputed by any one of them. As such, though the document Ex.D.1 is inadmissible as evidence of partition effected between defendants 1 and 3, nevertheless it is admissible to prove that the properties mentioned therein are the joint family properties and the first defendant and the 3rd defendant, being the members of the joint family, were in possession of the joint family properties mentioned therein on the date of the document and they severed their status as members of the joint family on the date of the document and they are in possession of the properties mentioned therein. Point No. 1 is answered accordingly.
POINT NO. 2:
21. It is admitted by defendants 1 and 3 that they have divided the joint family properties as per Ex.D. 1. It is contended on behalf of defendant-3 that he is entitled to a half share which has been allotted to him; that the plaintiffs are not entitled to re-open the partition inasmuch as they are entitled to a share in the properties allotted to defendant-1 under Ex.D.1. Therefore, the partition as effected under Ex.D. 1 cannot be re-opened and the plaintiffs are bound by it. The further contention is that defendants 1 and 3 being the coparceners and defendant-1 being the only male member in the branch of Govinda Rao was entitled to represent that branch in the partition between them. Therefore, the partition effected by defendant-1 and defendant-3 is binding upon the plaintiffs. It is submitted that even though the Hindu Succession Act, 1956 (hereinafter referred to as the 'Act') modifies the Hindu Law in many respects, the fabric of 'joint family' is maintained. As such the plaintiffs who are the sisters of defendant-1 were not necessary parties to the partition. Reliance is placed on a decision of the Supreme Court in RATNAM CHETTIAR AND ORS. v. S.M. KUPPUSWAMI CHETTIAR AND ORS., . It appears to us that it is not possible to accept these contentions.
22. Admittedly, Govinda Rao - the father of plaintiffs and defendant-1 and the husband of defendant-2 who was also the brother of defendant-3, died intestate on 24-2-62 as a member of the joint family consisting of himself, his wife, his son and his brother Gunde Rao (defendant-3) and the wife and children of Gunde Rao. The properties mentioned in Ex.D. 1 are admittedly the joint family properties. Govinda Rao left behind him a male and female relative specified in Class-l of the Schedule to the Act. To such a situation, the proviso and the Explanation-1 to Section 6 of the Act are attracted. Section 6 of the Act reads thus:
"6. Devolution of interest in co-parcenary property.
-When a mate Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the co-parcenary and not in accordance with the Act.
Provided that if the deceased had left him surviving a female relative specified in class 1 of Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession as the case may be, under the Act and not by survivorship.
Explanation 1. - For the purpose of this section the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.
Explanation. 2. - Nothing contained in the proviso to this Section shall be construed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein."
23. While dealing with the scope of Section 6 of the Act the Supreme Court in GURUPAD KHANDAPPA MAGDUM v. HIRABAI KHANDAPPA MAGDUM AND ORS., has held thus:
"8. Before considering the implications of Explanation 1, it is necessary to remember that what Section 6 deals with is devolution of the interest which a male Hindu has in a Mitakshara coparcenary property at the time of his death. Since Explanation-1 is intended to be explanatory of the provisions contained in the Section, what the Explanation provides has to be correlated to the subject matter which the Section itself deals with. In the instant case, the plaintiff's suit, based as it is on the provisions of Section 6, is essentially a claim to obtain a share in the interest which her husband had at the time of his death in the coparcenary property. Two things become necessary to determine for the purpose of giving relief to the plaintiff ; One, her share in her husband's share and two, her husband's own share in the coparcenary property. The proviso to Section 6 contains the formula for fixing the share of the claimant while Explanation-1 contains a formula for deducing the share of the deceased. The plaintiff's share, by the application of the proviso, has to be determined according to the terms of the testamentary instrument, if any, made by the deceased and since there is none in the instant case, by the application of the rules of intestate succession contained in Sections 8, 9 and 10 of the Hindu Succession Act. The deceased Kandappa died leaving behind him two sons, three daughters and a widow. The son, daughter and widow are mentioned as heirs in Class I of the Schedule and therefore by reason of the provisions of Section 8(a) read with the 1st Clause of Section 9, they take simultaneously and to the exclusion of other heirs. As between them the two sons, the three daughters and the widow will take equally, each having one share in the deceased's property under Section 10 read with Rules 1 and 2 of that Section. Thus whatever be the share of the deceased in the coparcenary property, since there are six sharers in that property, each having an equal share, the plaintiff's share therein will be 1/6 th.
9. The next step, equally important though not equally easy to work out, is to find out the share which the deceased had in the coparcenary property because after all the plaintiff has a 1/6 th interest in that share. Explanation 1 which contains the formula for determining the share of the deceased creates a fiction by providing that the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death. One must, therefore, imagine a state of affairs in which a little prior to Khandappa's death, a partition of the coparcenary property was effected between him and other members of the coparcenary. Though the plaintiff, not being a coparcener, was not entitled to demand partition yet, if a partition were to take place between her husband and his two sons, she would be entitled to receive a share equal to that of a son (see Mulla's Hindu Law, Fourteenth Edition, page 403, para 315). In a partition between Khandappa and his two sons, there would be four sharers in the coparcenary property, the fourth being Khandappa's wife, the plaintiff. Khandappa would have therefore got a 1/4 th share in the coparcenary property on the hypothesis of a partition between himself and his sons."
The above decision in Gurupad's case is again considered by the Supreme Court in STATE OF MAHARASHTRA v. NARAYAN RAO SHAM RAO DESHMUKH AND ORS., and it is held thus:
"9. 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 for 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 notionally allotted to her, as stated in Explanation 1 to Section 6 of the Act. But it cannot be an authority for the proposition that she ceased 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. 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 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 separate 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 statute. 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. We have already noticed that in the case of a Dayabhaga family, which recognises unity of possession but not community of interest in the family properties amongst its members, the members thereof do constitute a family. That might also be the case of families of persons who are not Hindus. In the instant case the theory that there was a family settlement is not pressed before us. 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.
24. Section 6 of the Act read in the light of the aforesaid two decisions of the Supreme Court makes it clear that a male Hindu dying intestate having at the time of his death an interest in a Mitakshara coparcenary property survived by 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 Mitakshara coparcenary property devolves as per the provisions of the Act and not by survivorship. The share of a female relative gets fixed in the Mitakshara coparcenary property. Thus on the death of Govinda Rao, the plaintiffs being his daughters became entitled to a share each in the interest left by Govinda Rao in the Mitakshara co-parcenary properties i.e., the suit properties as Govinda Rao died intestate and as an undivided member of the joint family. How the shares of the plaintiffs have to be determined is provided by Explanation-1 to Section 6 of the Act. The aforesaid two decisions of the Supreme Court also lay down in categorical terms as to in what manner the share of such female relative specified in Class I of the Schedule or a male relative specified in that Class who claims through such female relative, has to be determined. Therefore, it is clear that on 26-3-1962 when defendant-1 and defendant-3 divided the joint family properties, the plaintiffs and defendant-2 who were also entitled to a share each, were necessary parties to the partition. Their shares ought to have been carved out in the manner provided by the proviso and Explanation-1 to Section 6 of the Act. A partition effected only among some of the members of the family and not all the members who are entitled to a share wilt not bind the other members who are left out. Of course, a father during his lifetime can effect partition and divide the joint family properties without the consent of his sons and this right of the father as the Patria Potestas of the family is recognised by the Hindu Law and it is not affected by the Act. Even if the shares allotted by the father are unequal, if the sons acquiesced in it, they will be bound by such division. This is possible only in a case where Section 6 of the Act is not attracted. In other words, such a case would be one in which devolution of interest does not take place and the partition is effected in the joint family. But in a case where the devolution of interest takes place and the proviso and the explanations to Section 6 of the Act are attracted, all persons entitled to a share in the properties available for partition must be parties to the actual partition by metes and bounds. Normally in such a partition all the heads of the branches and females who are entitled to a share on partition are necessary parties to the partition effected by metes and bounds including the minors whose interest can be represented by their natural guardians or in their absence other persons who are authorised or entitled to act as guardians. Therefore, it follows that plaintiffs were necessary parties to the partition effected by defendants 1 and 3. Defendant-1 could not have represented plaintiffs 1 and 2 as by reason of their marriage during the lifetime of Govinda Rao, they had ceased to be the members of the joint family of their father consisting of himself, defendant-1 and defendant-2 and as such they were not members of the joint family on 26-3-62 but they were entitled to a share in the undivided interest left by their father Govinda Rao in the joint family properties.
The contents of Ex.D. 1 also reveal that no share had been allotted to plaintiffs 1 and 2 and defendant-2. It is already pointed out that defendant-1 could not have represented the plaintiffs at the partition as they were neither minors nor members of the joint family of defendant-1. However it is contended that the plaintiffs and defendant-2 were present during the course of partition and they did not object to the partition effected as per Ex.D. 1; as such they must be deemed to have acquiesced in the partition effected by defendants 1 and 3 and agreed not to take any share in the interest left by deceased Govinda Rao. In this regard except their self-serving assertion in the course of their evidence, no other evidence was adduced by them to prove that plaintiffs and defendant-2 were present at the partition and participated in the partition proceeding and assented to it. Ex.D. 1 is attested by three witnesses. None of them was examined. If really the plaintiffs and defendant-2 were present and participated in the partition proceedings and chose not to take any share in the joint family properties, in the normal course, the same ought to have been mentioned in Ex.D.1 and the plaintiffs and defendant-2 must have also been the signatories to the document. In the absence of necessary recitals in Ex.D. 1 and independent evidence on this point, it is not possible to accept the contention of defendants 1 and 3 that the plaintiffs were present and participated in the partition proceedings and did not choose to take any share in the joint family properties and as such they must be deemed to have acquiesced in the partition effected as per Ex.D.1 The contention is therefore rejected.
Even otherwise, it is also necessary to notice that a mere presence is not sufficient to hold that the plaintiffs and defendant-2 had acquiesced in the partition effected under Ex.D.1. Acquiescence is one of the aspects of the law of estoppel. Therefore, it imports knowledge of the subject to which a person concerned must be said to have acquiesced. Without the knowledge of the subject one cannot be said to have acquiesced in it. In the absence of evidence in the case that the plaintiffs and defendant-2 had full knowledge of the partition effected without allotting any share to them and even then they did not object to it. and led the defendants 1 and 3 to believe that they did not want to have their share in the joint family properties and as such defendants 1 and 3 effected the partition in the manner provided under Ex.D.1 and acted upon it and altered their position to their detriment it is not possible to draw an inference that the plaintiffs 1 and 2 and defendant-2 acquiesced in the partition effected by defendants 1 and 3 under Ex.D.1 so as to estop them from claiming their shares in the joint family properties.
In KRISHNA BAI v. KHANGOWDA, 1894 ILR 18 Bombay 197 a question arose as to whether the partition effected without reserving any share for a minor member of the family without the consent of someone authorised to act on his behalf, was valid and binding upon him. It was held that a partition effected without reserving any share for a minor member of the family and without the consent of someone authorised to act on his behalf was invalid as against the minor.
A similar question arose before the Privy Council in GANESH DUTT THAKOOR v. JEWACH THAKOORAIN, (1904) ILR 31 Calcutta 262 wherein a partition was effected among four sons forming a joint family governed by Mitakshara Law without allotting a share to their mother. The Privy Council approved the decision of the High Court of Bombay in the aforesaid Krishna Bai's case and held as follows:
"It was contended by Mr. Bannerjee that the omission to reserve a share for the mother rendered the partition invalid; and in support of this contention he relied on the case of Krishnabai v. Khangowda (1894) I.L.R. 18 Bom. 197, in which it was decided that a partition effected without reserving any share for a minor member of the family, and without consent of some one authorised to act on his behalf, is invalid as against the minor. So here, their Lordships recognise that the mother is not bound by a partition to which it is not shown she ever assented ; and the suit being one for a declaration of rights under the partition, in which all the parties interested are represented, and in which the mother claims her share, their Lordships have felt no difficulty in giving effect to her claim in the order which they will humbly advise His Majesty to make upon this appeal."
Similarly, a Division Bench of the High Court of Nagpur in Mt. RADHABAI v. PANDHARINATH BAPU NARAYAN BAPU KALAR, AIR 1941 Nagpur 135, following the aforesaid decision of the Privy Council in Ganesh Dutt Thakoor's case held as follows:
"A wife can sue for her share where there has been a partition and she has not been assigned any share and has not assented or waived her rights or acquiesced."
Therefore, the partition effected under Ex.D.1 without allotting any share to the plaintiffs and defendant-2 to which they were not parties is not binding upon the plaintiffs and defendant-2.
In view of the aforesaid finding, the second portion of Point No. 2 does not really arise for consideration. However, as it has been the case of defendants-1 and 3 in the trial Court and also before this Court, we proceed to consider the second portion of Point No. 2 also.
It is the case of defendant-3 that the shares of plaintiffs and defendant-2 are included in the share allotted to defendant-1. This contention is not supported by the very recitals contained in Ex.D. 1 coupled with the fact that the plaintiffs and defendant-2 were not parties to the partition. Further the division of the properties between defendants 1 and 3 is not equitable, as the value of the share allotted to defendant-3 is admittedly larger than the one allotted to defendant-1. In this regard, it is also to be noticed that the case of defendant-1 is that the shares of the plaintiffs are included in the properties allotted to the share of defendant-3 and the share of defendant-2 is included in the share allotted to him (defendant-1). This stand of the 1st defendant apart from being improbable is unreasonable also. The plaintiffs are not the children of defendant-3. They are the sisters of defendant-1, as such they cannot claim their share in the property allotted to defendant-3. The plaintiffs are entitled to claim a share only in the undivided interest of their father Govinda Rao. In addition to this, the recitals in Ex.D. 1 also do not support the stand of the 1st defendant as there is no such recital in Ex.D. 1. The oral evidence also does not disclose any such arrangement. Further, it will be highly unjust and inequitous to hold that the shares of plaintiffs and defendant-2 must be deemed to have been included in the properties allotted to the share of defendant-1 on the ground that they are entitled to claim shares in the properties allotted to the branch of Govinda Rao, in view of the fact that the partition effected under Ex.D.1 is highly inequitable as the value of the properties allotted to defendant-1 is far less than the value of the properties allotted to defendant-3 though there ought to have been equal division of properties. Further it is already pointed out that the plaintiff sand defendant-2 are not bound by the partition effected as per Ex.D.1. The contention of defendant-3 that his daughters were not married and his sons had not settled, therefore a larger share was allotted to him is not supported by the recitals contained in Ex.D. 1. Further it is disputed by defendant-1. According to him, a larger share was allotted to defendant-3 because it included the shares of the plaintiffs also. Hence the contention is rejected.
25. The learned Counsel for the 3rd defendant placed reliance on a decision of the Supreme Court in COMMISSIONER OF WEALTH TAX, KANPUR v. CHANDER SEN, in that decision, the scope of Section 8 of the Act is considered and it is held thus:
"20. In view of the preamble to the Act i.e., that to modify where necessary and to codify the law, in our opinion, it is not possible when schedule indicates heirs in Class I and only includes son and does not include son's son but does includes son of a predeceased son, to say, that when son inherits the property in the situation contemplated by Section 8 he takes it as karta of his own undivided family. The Gujarat High Court's view noted about, if accepted, would mean that though the son of a predeceased son and not the son of a son who is intended to be excluded under Section 8 to inherit, the latter would by applying the old Hindu law get a right by birth of the said property contrary to the scheme outlined in Section
8. Furthermore as noted by the Andhra Pradesh High Court the Act makes it clear by Section 4 that one should took to the Act in case of doubt and not to the pre-existing Hindu Law. 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 a mount to creating two classes among the heirs mentioned in Class I, the male heirs in whose hands it will be joint Hindu family property and vis-a-vis son and female heirs with respect to whom no such concept could be applied or contemplated. It may be mentioned that heirs in Class I of Schedule under Section 8 of the Act included widow, mother, daughter of predeceased son etc.
21. xx xx xx
22. The express words of Section 8 of the Hindu Succession Act, 1956 cannot be ignored and must prevail. The Preamble to the Act reiterates that the Act is, inter alia, to 'amend' the law. With that background the express language which excludes son's son but included son of a predeceased son cannot be ignored."
The above decision was followed in YUDHISHTER v. ASHOK KUMAR, it was held that "it would be difficult to hold that property which devolved on a Hindu under Section 8 of the Hindu Succession Act, 1956, would be HUF in his hand vis-a-vis his own sons. If that be the position, then the property which devolved upon the father of the respondent in the instant case on the demise of his grandfather could not be said to be HUF property. If that is so, then the Appellate Authority was right in holding that the respondent was a licensee of his father in respect of the ancestral house." Thus it is clear that both the aforesaid decisions do not deal with the proviso and Explanation-1 to Section 6 of the Act. Therefore, they are not relevant for our purpose.
For the reasons stated above, point No. 2 is answered as follows:
"The partition effected as per Ex.D. 1 is not valid and is not binding on the plaintiffs and defendant-2. The shares of the plaintiffs and defendant-2 were not included in the properties allotted to the shares of defendant-3 and defendant-1 respectively."
POINT NO. 3:
26. In the light of the findings recorded on point No. 2, this point should not detain us for long because under point No. 2, it has been held that the partition effected as per Ex.D.1 is not valid and is not binding upon the plaintiffs and defendant-2.
27. As the plaintiffs were entitled to a share in the properties mentioned in Ex.D.1 and as those properties were divided by defendants 1 and 3 without the consent of the plaintiffs and without allotting any property to their shares and their right to seek partition has not been barred by time, they are entitled to claim their shares, as a consesequence, in order to carve out their shares in the joint family properties, the partition has to be necessarily reopened.
Admittedly, there is unequal division of the properties between defendant-1 and defendant-3. It is true in the normal circumstances, in the properties allotted to the share of defendant-3, the plaintiffs are not entitled to claim any share therein; but in a case like this, where the division of the properties effected between the defendants 1 and 3 in the absence of the plaintiffs and without their consent, is highly unequal, and the share of the plaintiffs is affected; the plaintiffs are entitled to reopen the partition that had taken place between defendants 1 and 3. In the facts and circumstances of the case, the plaintiffs cannot be considered to be parties to the partition. As such they can ignore the partition effected by defendants 1 and 3 as long as their right to seek partition has not been extinguished.
The question of re-opening of the partition will arise only if one is or is deemed to be a party to the partition. In that event, the rule laid down in Ratnam Chettiar v. S.M. Kuppuswami Chettiar for reopening of a partition would become applicable and in such a case, partition cannot be reopened unless it is shown that the partition is obtained by fraud, coercion, misrepresentation and undue influence. In the case on hand, the plaintiffs who were required to be parties to the partition and entitled to a share in the properties which were the subject matter of partition, were neither parties to the partition nor they had consented to it. Therefore, they can ignore the partition effected under Ex.D.1. Thus for all purposes, they can proceed on the basis that no partition has taken place as long as their right to seek partition is not extinguished; in other words it is not barred by time. Accordingly, the first portion of point No. 3 is answered as follows:
"The plaintiffs are entitled to seek be novo partition and separate possession of their shares in the properties enumerated in Ex.D.1 ignoring the partition effected by defendants 1 and 3 under Ex.D. 1."
28. Now we will take up the second portion of point No. 3 for consideration and determine what is the share to which the plaintiffs are entitled in the joint family properties enumerated in Ex.D.1.
Deceased Govinda Rao, father of the plaintiffs and Gunde Rao (Defendant-3) were the brothers and were the members of a joint Hindu family as on 24-2-1962, the date on which Govinda Rao died. The properties possessed by the joint family were those which are mentioned in Ex.D. 1. On 24-2-1962, Gunde Rao and Govinda Rao were entitled to one half each in the joint family properties. As Govinda Rao died intestate leaving behind both male and female heirs, the share of Govinda Rao in the joint family properties did not go by survivorship. The share of Gunde Rao on 24-2-1962 was only half in the joint family properties. As such he is entitled to half share in the joint family properties.
29. Govinda Rao was survived by defendant-1, defendant-2 and the plaintiffs. As per the proviso and Explanation-1 to Section 6 of the Act, the share of Govinda Rao as on 24-2-1962 has to be first carved out in order to determine the share of defendant-2 and the plaintiffs. No doubt Govinda Rao's branch was entitled to a half share in the joint family properties but the interest of Govinda Rao was not to the entire extent of half share in the joint family properties, if the partition were to take place between him and his son on 24-2-1962 as he had a son by name Umakanth (defendant-1). No doubt under a general Hindu Law a Hindu wife herself cannot demand partition, but if a partition takes place between her husband and his son, she is entitled to receive a share equal to that of a son and enjoy the same separately even from her husband. (See para 315 of Hindu Law by Mulla 14th Edition at page 435). However, this practice has become obsolete in South India. In the instant case, the parties come from Hyderabad Karnataka area which is governed by Madras School of Hindu Law, according to which, the mother is not entitled to claim a share in a partition between her husband and his son or sons.
In SUBRAMANIAN CHETTI AND ORS. v. ARUNACHALAM CHETTI AND ORS., (1905) ILR 28 Madras 1, the Full Bench in connection with the right of a mother to claim a share in a partition between her husband and his son or sons in South India has observed thus:
"As to SOROLAH DOSSEE v. BHOOBUN MOHUN NEOGHY (I.L.R. 15 Cal. 202) and BENI PARSHAD v. PURANCHAND (I.L.R. 23 Calcutta 262) which relate to the share taken by a mother in a partition between the sons and which were also relied on for the defendants, they are in conflict with CHHIDDU v. NAUBAT (I.L.R.: 24 Allahabad 67) dealing with the same question. Considering that the right of a mother to a share in a partition between the sons is not enforced in this Presidency, the question whether the view of the Calcutta High Court or the Allahabad High Court is correct, in so far as this Court is concerned, is of no practical importance."
This question again came up for consideration before a Full Bench of the High Court of Andhra Pradesh in ADUSUMILLI SEETHAMAHALAKSHMAMMA v. YERNENI CHALAMAIAH AND ORS., . The Full Bench opined after considering the various authorities having a bearing on the question thus:
"Since the parties are governed by the Madras School, the wife or mother cannot claim any share in the joint family property as the practice of allotting shares to females, even if it existed at some distant period of time, has become obsolete in Southern India."
Therefore, defendant-2 in a partition between defendant-1 and his father, was not entitled to claim a share. That being so, the share of deceased Govinda Rao was 1/4 th and that of defendant-1 was 1/4 th. This 1/4 th share of Govinda Rao devolved upon the plaintiffs, defendant-1 and defendant-2 in equal proportion. Therefore, each one of them became entitled to 1/16 th. Thus on the death of Govinda Rao, the share of defendant-1 was 1/4 th + 1/16 th = 5/16 th; that defendant-2 was 1/16 th and that of plaintiffs 1 and 2 was 1/16 th each.
During the pendency of the appeal, defendant-2 died in October 1981. Consequently, her share has devolved upon the plaintiffs 1 and 2 and defendant-1 in equal proportion as per the general rules of succession in the case of female Hindus as contained in sub-section (2) of Section 15 of the Act as the properties inherited by defendant-2 were from her husband - the father of plaintiffs 1 and 2 and defendant-1. Thus in the 1/16 th share of defendant-2, defendant-1 gets 1/3rd of 1/16 th i.e., 1/48 th and each of the plaintiffs also gets 1/48 th. Thus defendant-1's share would be 1/48 th + 5/16 = 1/3rd and the share of each of the plaintiffs would be 1/48 + 1/16 th = 1/12 th. Consequently, the share of defendant-1 and the plaintiffs 1 and 2 would be 1/3 rd; 1/12 th and 1/12 th respectively. Accordingly, the latter portion of point No. 3 is answered as follows:
"Each of the plaintiffs is entitled to 1/12 th and defendant-1 is entitled to 1/3rd share in the joint family properties mentioned in Ex.D. 1 and defendant-3 is entitled to 1/2."
POINT NO. 4:
30. The question for consideration is whether it is a case in which power under Order 41 Rule 33 of the C.P. Code can be exercised. The appeal arises out of a suit for partition and separate possession of the shares of the plaintiffs in the joint family properties. The trial Court has awarded half share in the properties allotted to the share of defendant-1 under Ex.D. 1. The plaintiffs have not come up in appeal. It is the defendant-1 who has come up in appeal. The case of defendant-1 is that the share of the plaintiffs in the joint family properties is retained by defendant-3 whereas the case of defendant-3 is that the share of the plaintiffs and defendant-2 is included in the properties allotted to the share of defendant-1 because it is in those properties, the plaintiffs and defendant-2 are entitled to claim a share and not in the properties allotted to his share. The trial Court has held that the share of the plaintiffs was not retained by defendant-3 nor it was allotted to his share. It has also further held that the share of the plaintiffs and defendant-2 must be deemed to have been included in the properties allotted to the share of defendant-1 under Ex.D.1. While considering point Nos. 1 to 3, we have held that the plaintiffs are not bound by the partition effected under Ex.D.1. The division effected between defendant-1 and defendant-3 is also not equal. Admittedly, there is a considerable disparity between the value of the two shares. It has already been held that each of the plaintiffs is entitled to 1/12 th share in the entire joint family properties. In such situation, if the power under Order 41 Rule 33 is not exercised, great injustice would be caused to the plaintiffs and defendant-1 in as much as the properties allotted to defendant-1 under Ex.D.1 are not equivalent to one half of the joint family properties. Thereby the value of the share of the plaintiffs 1 and 2 and also defendant-1 is considerably reduced. Further both the plaintiffs together are entitled to only 1/16 th share and not as decreed by the trial Court. The share of the appellant is very much affected. In such a situation, it is most appropriate to exercise the power under Rule 33 of Order 41 of the C.P. Code and pass a decree which ought to have been passed by the trial Court. From what is stated above, it is also clear that exercise of power under Rule 33 of Order 41 of the Code is necessary in order to grant relief to the appellant. In RAMESWAR PRASAD v. SHAMBEHARI LAL JAGANNATH, while considering the scope of Rule 33 of Order 41 of the C.P. Code, it is observed thus:
"This rule is under the sub-heading Judgment in Appeal'. Rule 31 provides that the Judgment of the Appellate Court shall be in writing and shall state inter alia the relief to which the appellant is entitled in case the decree appealed from is reversed or varied. Rule 32 provides to what the Judgment may direct and states that the Judgment may be for confirming, varying or reversing the decree from which the appeal is preferred, or, if the parties to the appeal agree as to the form which the decree in appeal shall take, or as to the order to be made in appeal, the Appellate Court may pass a decree or make an order accordingly. The reversal or variation in the decree would therefore, be in accordance with what the appellant had been found to be entitled. The decree, therefore, is not to be reversed or varied with respect to such rights to which the appellant is not found entitled. Rule 33 really provides as to what the Appellate Court can find the appellant entitled to. It empowers the Appellate Court to pass any decree and make any order which ought to have been passed or made in the proceedings before it and thus could have reference only to the nature of the decree or order in so far as it affects the rights of the appellant."
Following the aforesaid decision of the Supreme Court, this Court in HANMANTHRAO v. SARUPCHAND, 1974(2) KLJ 195 has held that the power under Rule 33 of Order 41 of the C.P. Code can be exercised by the Appellate Court in favour of a respondent only as a necessary consequence of the relief to be granted to the appellant and not independently of it. We have already pointed out that the exercise of power under Rule 33 of Order 41 of the C.P. Code has become necessary to grant the relief to the appellant also. Thus point No. 4 is answered in the affirmative.
POINT NO. 5:
31. In view of the findings recorded on points 1 to 4, the decree of the trial Court has to be modified.
32. For the reasons stated above, the appeal is allowed. The Judgment and decree of the trial Court are modified. It is declared and decreed that each of the plaintiffs is entitled to 1/12 th share;
the 1st defendant is entitled to 1/3rd share and defendant-3 is entitled to half share in the joint family properties mentioned in Ex.D. 1.
33. Whether the various amounts mentioned in Schedule-Ill to Ex.D. 1 are recovered or not by defendant-3 from the various persons mentioned therein is left open to be decided in the final decree proceeding.
34. A Preliminary decree be drawn in the aforesaid terms. The division of the properties be made in terms of the decree either through the Deputy Commissioner or through Court according to the nature of the property. There shall also be an enquiry into future profits from the date of the suit till the date of delivery of possession of the shares of the plaintiffs.
35. We are aware that it is unfortunate that the partition effected on 26-3-1962 has to be reopened; but we cannot help it as the claim of the plaintiffs is well- in time. However, we may observe that the Court or the Deputy Commissioner, as the case may be should ensure that the partition is effected equitably without causing much hardship to defendants 1 and 3.
36. In the circumstances, there will be no order as to costs throughout.