THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN S.A.No.316 of 2007
M.Mani ... Appellant Versus
1. B.Mathan
2. M.Bheeman
3. Devi
4. Gokila
5. Dharmaraj ... Respondents
Prayer: Second Appeal filed under Section 100 of the Civil Procedure Code to set aside the judgment and decree dated 31.10.2006 made in A.S.No.8 of 2006 on the file of the District Judge of the Nilgiris at Udhagamandalam reversing the judgment and decree dated 10.04.2006 passed in O.S.No.111 of 2005 on the file of the Subordinate Judge, Uthagamandalam.
For Petitioner : Mr.K.J.Rebello For Respondent : Mr.M.Santhanamani Mr.E.J.Ayyappan *****
J U D G M E N T
The plaintiff is the appellant before this court. Aggrieved by the concurrent findings of the Courts below dismissing the suit for partition, the present appeal is filed.
2. The brief facts leading to the appeal are as follows:
The plaintiff is the son of the first defendant. According to the plaintiff, the suit properties are joint family properties, ancestral in nature and the first defendant is the karta of the joint family. The properties were purchased from the joint family exertion in the name of the family members and all the properties put to common hotchpotch. Since the first defendant is alienating the joint family property as his individual property, the suit for partition is filed by the plaintiff seeking 1/4th share in the suit property.
3. The suit was contested by the defendants alleging that except 20 cents of land, no other property in the suit schedule are ancestral property. The suit properties are not joint family property as claimed by the plaintiff. The properties are self-acquired property of the first defendant, which was either purchased in the name of Bella Gowder, the father of the first defendant or in the name of first defendant and few properties were purchased in the name of his sons.
4. The Trial Court after considering the evidence has held that the suit properties are not ancestral properties. They are self-acquired properties of the first defendant. Therefore, the plaintiff is not entitled for partition till the life time of the first defendant. With liberty to file a fresh suit as and when right accrues, Trial Court dismissed the suit.
5. Aggrieved by that, the plaintiff preferred first appeal on the ground that the suit was dismissed on wrong application of law and due to its failure in appreciating the evidence. More particularly, in Exhibit A4 dated 12.11.2002, the Panchayat Muchalika, the first defendant promised to divide the joint family property and give an equitable share to the plaintiff.
6. The First Appellate Court after re-appreciating the evidence, relied upon the admission of the plaintiff that the properties are self- acquired properties of his father and grandfather, held that only Section 8 of the Hindu Succession Act is applicable to the facts of the case and the plaint suit for partition is premature since his father Mathan is alive.
7. At the time of the admission of the Second Appeal, this Court has formulated the following substantial questions of law:
(1) Have the Courts below wrongly held that the principles enunciated in the decisions reported in AIR 1986 Supreme Court Page 1753 and AIR 1979 Madras Page 1 apply to the present case?
(2) Have the Lower Courts erred in ignoring the legal effect of Ex.A.4 wherein the first defendant had agreed to partition the properties between his sons on a later date?
8. The plaintiff though claimed that the suit properties are ancestral properties, the evidence placed before the Court proves otherwise. Most of the suit properties were purchased in the name of Bella Gowder or in the name of the first defendant Mathan. The plaintiff has candidly admitted in his deposition that the suit properties are of self- acquired of his father and his grandfather. While so, in the absence of evidence to show that the suit properties are coparcenary property, Section 6 of the Hindu Succession Act is not applicable. The Courts below had rightly held that the suit properties shall devolve only under Section 8 of the Hindu Succession Act if the title holder dies intestate. As per the facts of the case, the suit for partition is premature and the plaintiff is not entitled for any share in the property till the life time of the first defendant.
9. In support of the said findings, the Trial Court has relied upon the case of Commissioner of Wealth tax, Kanpur etc., Vs. Chander Sen etc., reported in [AIR 1986 SCC 1753(1)]. The relevant portion for the present case is extracted hereunder:
"14.It is clear that under the Hindu Law, the moment a son is born, he gets a share in the father's property and becomes part of the coparcenary. His right accrues to him not on the death of the father or inheritance from the father but with the very fact of his birth. Normally, therefore whenever the father gets a property from whatever source from the grandfather or from any source, be it separated property or not, his son should have a share in that and it will become part of the joint Hindu family of his son and grandson and other members who form joint Hindu family with him. But the question is; is the position affected by S.8 of the Succession Act, 1956 and if so, how? The basic argument is that S.8 indicates the heirs in respect of certain property and Class I of the heirs includes the son but not the grandson. It includes, however, the son of the predeceased son. It is this position which has mainly induced the Allahabad High Court in the two judgments, we have noticed, to take the view that the income from the assets inherited by son from his father from whom he has separated by partition can be assessed as income of the son individually. Under S.8 of the Hindu Succession Act, 1956 the property of the father who dies intestate devolves on his son in his individual capacity and not as karta of his own family."
10. The counsel for the appellant submitted that the defendants admits that twenty cents of land is the ancestral property. While so, it is to be presumed that the rest of the properties were purchased from out of the earning derived from the ancestral property and the entire suit property were put into common hotchpotch, so it should be considered as joint family property. In support of his claim, the judgment reported in AIR 1963 MADRAS 255 (V 50 C 95) Arunachalathammal Vs. Ramachandran Pillai and others was referred. The relevant portion of the judgment is extracted below:
"27.......In 1945-1 Mad LJ 108:(AIR 1945 FC 25) Varadachariar, J., recognised that the words "separate property" might be the antithesis of "ancestral property, co-parcenary property, or joint family property" and proceeded to ascertain which of the meaning was appropriate to the interpretation of S.3(1) by ascertaining the intent and purpose of the statute in question. The learned Judges held that the Hindu Women's Rights to Property Act of 1937, not being a "codyfying Act" or even a general amendment of the Hindu Law of Inheritance, but intended purely to remedy a particular deficiency tinder the existing law, there was no need to give a larger interpretation to the words "separate property" than the circumstances surrounding the legislation warranted. Under the then existing law the widow could not inherit where her husband had left sons. By their presence there would be no separate property except the self acquired one. Section 3(1) was therefore held to apply to that kind of property alone, as other kinds of property would, in the presence of sons, be joint family property; Sec.3(2) provided for it. There was no need to provide for a case where a man died son- less, as the widow could inherit under the ordinary law every kind of separate property, enactment in that case being only supplementary to the general law of inheritance."
11. As per the facts of the case in hand, Bella Gowder died on 18.11.1965, i.e., after the advent of Hindu Succession Act 1956. As admitted by the first defendant, Bella Gowder on his own has purchased Item No.1 of the suit property and the first defendant had purchased Item No.2 of the suit property in the name of his father Bella Gowder. Rest of the properties are either purchased by the first defendant in own name or in the name of the other son. In any event, there is difference between ancestral property and coparcenary property. As held by the Supreme Court in State Bank of India Vs.Ghamandi Ram (dead) by his legal representative Gurbux Rai [AIR 1969 SCC 1330]. The relevant portion of the judgment is extracted hereunder:
"7.According to the Mitakshara School of Hindu Law all the property of a Hindu joint family is held in collective ownership by all the coparceners in a quasi-corporate capacity. The textual authority of the Mitakshara lays down in express terms that the joint family property is held in trust for the joint family members then living and thereafter to be born (See Mitakshara, Chapter I. 1-27). The incidents of co-parcenership under the Mitakshara law are; first, the lineal male descendants of a person up to the third generation, acquire on birth ownership in the ancestral properties of such person; secondly that such descendants can at any time work out their rights by asking for partition; thirdly, that till partition each member has got ownership extending over the entire property conjointly with the rest fourthly, that as a result of such co-ownership the possession and enjoyment of the properties is common; fifthly that no alienation of the property is possible unless it be for necessity, without the concurrence of the coparceners, and sixthly, that the interest of a deceased member lapses on his death to the survivors. A coparcenery under the Mitakshara School is a creature of law and cannot arise by act of parties except in so far that on adoption the adopted son becomes a co-parcener with his adoptive father as regards the ancestral properties of the latter."
12. From the evidence, it is clear that the suit properties are not co-parceners property or joint family property. It is self acquired properties of Bella Gowder and the first defendant. These properties were not obtained by co-parceners or held by the family members as co-parceners.
13. Therefore, the plaintiff has no right to claim partition while his father, the first defendant is alive. The Courts have rightly rejected the plea of the appellant and there is no substantial questions of law to inference. So far as Exhibit A4-letter is concerned it is a promise made by the first defendant to give share in his properties in future. It does not mean that the plaintiff has right over the property or Ex.A4-Muchilika can be legally enforced through a suit for partition.
14. Accordingly, the Second Appeal is dismissed confirming the judgment and decree of the first Appellate Court. There shall be no order as to costs.
.01.2017
Index :Yes/No. Internet:Yes/No. rm
G.JAYACHANDRAN, J.,
rm To
1. The District Judge, Nilgiris at Uthagamandalam.
2. The Subordinate Judge, Nilgiris at Uthagamandalam.
S.A.No.316 of 2007
.01.2017
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