IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO R.F.A.No.1267/2010 BETWEEN:
SRI M P SRINIVAS AGED ABOUT 32 YEARS S/O Y M PATTABHIRAMAIAH RESIDING AT No.48/23 SARDAR MUDLAPPA STREET DODDAMAVALLI BANGALORE – 560 004.
...APPELLANT (BY SRI SMT. K M SAI APABHARANA, FOR SRI G K V MURTHY, ADVOCATE) AND:
1. SRI Y M PATTABHIRAMAIAH AGED ABOUT 59 YEARS S/O LATE B MUNISWAMAPPA RESIDING AT No.24/6 SRIRAMAMANDIRAM ROAD BASAVANAGUDI BANGALORE – 560 004.
2. SMT. M P BHARATHI AGED ABOUT 33 YEARS D/O Y M PATTABHIRAMAIAH No.161/B, GOKUL 1ST STAGE 1ST PHASE, MATHIKERE BANGALORE – 560 054.
...RESPONDENTS (BY SRI V T PRAKASH KUMAR, ADVOCATE FOR R-1- ABSENT; R-2 SERVED –UNREPRESENTED) THIS RFA IS FILED U/S 96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 26.02.2010 PASSED IN O.S.4657/2005 ON THE FILE OF THE I-ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE, DISMISSING THE SUIT FOR DECLARATION, PARTITION AND INJUNCTION.
THIS RFA COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Learned counsel for appellant present. Learned counsel for respondent No.1 absent.
The appeal is directed against the judgment and decree passed by the learned I Additional City Civil and Sessions Judge, Bangalore, in OS No. 4657/2005 on 26-02-2010, wherein, the suit for partition filed by one Srinivasa-plaintiff came to be dismissed.
2. In order to avoid confusion and overlapping, the parties are addressed with reference to their status of rankings as held before the trial court.
3. The substance of the case of the plaintiff in O.S.No.4657/2005 is, he is the son of defendant No.1 and defendant No.2 is the daughter of defendant No.1. The suit schedule property bearing No.24 and New No.6, Present property No.24/6 at Sriramamandiram Road, Basavanagudi, Bangalore-560004, totally measuring East-West 100 feet and North-South 40 feet was held by the propositus Byrappa, great grand father of the plaintiff, naturally, the grand father of defendant No.1. The said property was divided among the defendant No.1 and his siblings, the three sons of Byrappa viz., (i) Byanna, (ii) Late B. Muniswamappa and (iii) Late B.Narayanaswamy. In the said division, late Muniswamappa, father of the defendant and grand father of the plaintiff as well as 2nd defendant was allotted the rear portion in the eastern portion measuring East to West 30 feet and North to South 45 feet. Defendant No.1 Y.M.Pattabhiramaiah is stated to be the son of Muniswamappa. Thus, the plaintiff and defendant No.2 are the grand children of said Muniswamappa and children of defendant No.1. In the partition that was effected among the said uncles of plaintiff and defendant No.1 being the father of the plaintiff, the property that came to be allotted to them was the rear portion in the eastern portion measuring East-West 30 feet and North to South 45 feet shown in yellow colour in the sketch. This property thus is the ancestral property wherein the defendants and plaintiff have legitimate interest. The plaintiff claims that the property originally that was inherited from the great grand father by his father remains as joint family property and partible among the plaintiff and defendant Nos. 1 and 2.
4. Defendant Nos. 1 and 2 appeared and filed their written statements.
5. The learned trial Judge, considering the pleadings, contentions, oral evidence of PW1 and DW1 and documentary evidence of Exs.P1 to P8 on behalf of plaintiffs and after hearing the parties, dismissed the suit of the plaintiff by its judgment dated 26/02/2010. The same is challenged by the plaintiff in this appeal.
6. Learned counsel Smt. K.M. Apabharana for Sri.
G.K.V.Murthy for appellant/plaintiff would submit that the principles of Hindu Law determines and guarantees undivided share in the joint Hindu family in the properties belonging to the joint family which includes the ancestral property as well. There is no dispute insofar as property originally belonged to Byrappa, great grand father of the plaintiff and defendant No.2. It is further submitted that upon the death of Byrappa, the property was partitioned among his sons as stated above and that the share that fell to Muniswamappa devolved upon the family of the plaintiff as defendant No.1 is the son of Muniswamappa. Regard being had to the fact that plaintiff and the defendant No.2 constitute the members of joint family now headed by defendant No.1 and naturally, the plaintiff has 1/3rd share in the schedule property.
7. Learned counsel also would submit that the learned trial Judge refused to order partition for the very reason that the suit schedule property was mortgaged to State Bank of India and being the encumbered property it was not available for partition. Further, the learned trial Judge did not entertain the plea of the plaintiff on the ground that there is a collusion among the plaintiff and defendant Nos. 1 and 2 to circumvent and frustrate the rights of State Bank of India. In this connection, learned counsel would submit that an application also was filed during the proceedings by the defendant No.1 to implead State Bank of India as the defendant No.3 that came to be rejected by the trial Judge. The learned counsel would further submit that the trial Judge did not accept the nature of schedule property as the joint family property and held it as a separate property of defendant No.1 having acquired from coparcenery.
8. The learned counsel relied upon the dictum laid down by the Hon’ble Apex Court in the case of Arshnoor Singh Vs. Harpal Kaur and others in Civil Appeal No.5124/2019 arising out of SLP (Civil) No.6788/2019 to the extent that the property in the similar circumstances enure to the benefit of all the members of the family. In this connection, learned counsel has relied upon para Nos. 8.2 and 8.4, wherein, it is held as under:
“8.1. It is settled law that the power of a Karta to sell coparcenary property is subject to certain restrictions viz. the sale should be for legal necessity or for the benefit of the estate.5 The onus for establishing the existence of legal necessity is on the alienee.
In Rani & Anr. v. Santa Bala Debnath & Ors.,6 this Court held that :
“10. Legal necessity to support the sale must however be established by the alienees. Sarala owned the land in dispute as a limited owner. She was competent to dispose of the whole estate in the property for legal necessity or benefit to the estate. In adjusting whether the sale conveys the whole estate, the actual pressure on the estate, the danger to be averted, and the benefit to be conferred upon the estate in the particular instance must be considered. Legal necessity does not mean actual compulsion: it means pressure upon the estate which in law may be regarded as serious and sufficient. The onus of providing legal necessity may be discharged by the alienee by proof of actual necessity or by proof that he made proper and bona fide enquires about the existence of the necessity and that he did all that was 5 Vijay A. Mittal & Ors. v. Kulwant Rai (Dead) through LRs & Ors., (2019) 3 SCC 520; Mulla on Hindu Law (22nd Edition), Pg. 372.
6 (1970) 3 SCC 722.
reasonable to satisfy himself as to the existence of the necessity.” (emphasis supplied) 8.2. In the present case, the onus was on the alienee i.e. Respondent No. 1 to prove that there was a legal necessity, or benefit to the estate, or that she had made bona fide enquiries on the existence of the same.
8.3. Respondent No.1 has completely failed to discharge the burden of proving that Dharam Singh had executed the two Sale Deeds dated 01.09.1999 in her favour out of legal necessity or for the benefit of the estate. In fact, it has come on record that the Sale Deeds were without any consideration whatsoever.
Dharam Singh had deposed before the Trial Court that he sold the suit property to Respondent No. 1 without any consideration. Respondent No.1 had also admitted before the Collector, Ferozepur that the Sale Deeds were without consideration.
Hence, the ground of legal necessity or benefit of the estate falls through.
8.4. As a consequence, the Sale Deeds dated 01.09.1999 are hereby cancelled as being illegal, null and void. Dharam Singh could not have sold the coparcenary suit property, in which the Appellant was a coparcener, by the aforesaid alleged Sale Deeds.”
9. Learned counsel for appellant has relied on the decision of the Hon’ble Supreme Court in the case of Sunil Kumar and another vs. Ram Parkash and others reported in [(1988) 2 Supreme Court Cases 77], wherein, at para No.27, it is held as under:
“27. I do not think that these submissions are sound. It is true that a coparcener takes by birth an interest in the ancestral property, but he is not entitled to separate possession of the coparcenary estate. His rights are not independent of the control of the karta. It would be for the karta to consider the actual pressure on the joint family estate. It would be for him to foresee the danger to be averted. And it would be for him to examine as to how best the joint family estate could be beneficially put into use to subserve the interests of the family. A coparcener cannot interfere in these acts of management. Apart from that, a father-karta in addition to the aforesaid powers of alienation has also the special power to sell or mortgage ancestral property to discharge his antecedent debt which is not tainted with immorality. If there is no such need or benefit, the purchaser takes risk and the right and interest of coparcener will remain unimpaired in the alienated property. No doubt the law confers a right on the coparcener to challenge the alienation made by karta, but that right is not inclusive Of the right to obstruct alienation. Nor the right to obstruct alienation could be considered as incidental to the right to challenge the alienation. These are two distinct rights. One is the right to claim a share in the joint family estate free from unnecessary and unwanted encumbrance. The other is a right to interfere with the act of management of the joint family affairs. The coparcener cannot claim the latter right and indeed, he is not entitled for it. Therefore, he cannot move the court to grant relief by injunction restraining the karta from alienating the coparcenary property.”
10. Learned counsel for appellant also relied on para No.21 of the decision of the Division Bench of this Court in the case of Pushpalatha N.V. Vs. V. Padma and others rendered in Regular First Appeal No.326/2004 which reads as under:
“21.Therefore from the above referred decisions, it becomes quite clear that whenever a partition of ancestral property takes place, the share a coparcener gets continues to be ancestral if on the date of partition he has a son. He holds such property as his absolute property if no son exists on the date of partition, but if a son is born subsequently, the ancestral character revives. After commencement of Hindu Succession(Amendment) Act of 2005, the presence of a daughter or birth of a daughter subsequently has the same effect, but her entitlement to a share being a coparcener is subject to the riders found in the amended Section 6 and the ratio laid down by the Supreme Court in Prakash and others vs Phuluvati and Others [(2016) 2 SCC 36]. If succession to self acquired property of a male Hindu takes place among his heirs in accordance with Section 8 of the Hindu Succession Act, the share that every member takes will be held by each of them as his or her separate property.”
11. I have perused the Article Nos.288 and 292 at page Nos.834 and 837 of Hindu Law and the said paras are as under:
288. Equal right n grandfather’s property - The result therefore is that while the son has a right by birth both in his father’s and in his grandfathers’ property, a distinction under a special text makes the right of the son and the father equal n the property of the grandfather. That text is: “the ownership of the father and the son is the same in land, a corrody or wealth received from the grandfather” But in the case of father’s property, the ownership of the son is unequal, for the father has an independent power over it or a predominant interest. The son’s right by birth does not therefore extend to his enforcing a partition or interdicting an alienation of his father’s property. The right however remains a real birthright, though dormant and enables the son to succeed to the property by survivorship or as Apratibandha Daya.
It was accordingly held in Nana Tawker Vs. Ramnachandra (1) that an undivided son takes his father’s separate property by survivorship; and (2) that an undivided son takes the self acquired property of the father to the exclusion of the divided son. Dissenting from the first proposition, a Full Bench of the Madras High Court has decided that an undivided son takes the self acquired property of his father by inheritance and not by survivorship, Kumaraswami Sastri, J., expressing the opinion that ancestral property is co extensive with the objects of Apratibandha Daya or unobstructed heritage. This view is opposed to the clear statements in the Mitakshara and in the other works bearing on the pont which expressly refer to the son’s right in the father’s property as unobstructed heritage. The misconception was evidently due to the view based on the observation inSartaj Kuari’s case, relating to impartible estates that there can be no right by brth where there is no right to partition. But the right by birth in the father’s property s expressly stated by all the Sanskrit authorities, and the observation in Sartaj Kuari’s case has itself no force after the reiterated explanation of it in subsequent cases that the existence of survivorship is quite consistent wth the dominant interest possessed by the hold of an impartible estate and with the absence of a right partition or to itnerdct an alienation on the art of the junior member. A s Sir Dinshaw Mulla observes in Sibapradsada Vs. Prayag Kumar, though the other rights which a coparcener acquires by birth in impartible property no longer exist, the birth right of the senior member to take by survivorship still remains. So, too, in the case of ordinary partible property acquired by a father, the son’s right by birth exists even though the other rights of a coparcener, such as the right to enforce a partition or to interdict an alienation, cannot owing to the power of control and the dominant interest of the father, co exist. The right by birth in such property is not a mere spec succession is but it can be renounced or surrendered so that, as has been held a divided son loses his right of inheritance to it.”
292. Ancestral property - The second question is as to what is meant by coparcenary property. The first species of coparcenary property is that which s known as ancestral property. That term, in its technical sense, is applied to property which descends upon one person in such a manner that his male issue acquire certain rights in it as against him. For instance, if a father under Mitakshara law is attempting to dispose of property, we inquire whether it is ancestral property. The answer to this question is that property is ancestral property in the father’s hands if it has been inherited by him as unobstructed property, that is not ancestral if it has been inherited by the father as obstructed property. The reason of this distinction is that, in the former case, the father had an effective vested interest in the property, before the inheritance fell in, and therefore his own issue acquired by birth a similar interest in that interest. Hence, when the property actually devolved upon him, he took it subject to the interest they had already acquired. But in the latter case, the father had no such interest in the property, before the descent took place; therefore, when what even occurred, he received the property free of all claims upon it by his issue, and a fortiori, by any other person. Hence, all property which a man inherits from a direct male ancestor, not exceeding three degrees higher than himself, is ancestral property, and is at once held by himself in coparcenary with his own male issue. In view of section 8 of the Hindu Succession Act it has been held the property inherited by the son as class I heir from his father will be the self acquired property in the hands of the son. When he has no male issue, the sister will inherit the property as separate property. But where he has inherited from a collateral relation, as for instance from a brother, nephew, cousin or uncle, it is not ancestral property in his hands in relation to his male issue, consequently, his male issues have no equal rights as coparceners. They cannot restrain him in dealing with it, nor compel him to give them a share of it. On the same principle, property which a man inherits from his mother or maternal grandfather or maternal uncle or other collateral relation in the maternal line, is not ancestral property. The grandsons who inherit property from the maternal grandfather cannot be said to constitute a joint family. It is settled by a decision of the judicial committee that the term, ancestral property, must be confined to property descending to the father form his male ancestor in the male line and that it is only in that property that the son, acquires by birth an interest jointly with and equal to that of his father. If the last male holder of the property has no male descendant he can alienate the property as it is his absolute property. Property inherited by a person from any female is his separate property and his male issue cannot take any interest by birth and cannot clam partition.
Under the Hindu Women’s Rights to Property Act, 1937, where a man’s separate property devolves upon his widow and his male issue, the widow’s interest in the property on her death will devolve upon the male issue that survive her as her husband’s heirs. In that event, the property would be nonetheless ancestral property in the hands of the son or grandson: for, it is inherited only as the father’s property and not as the property of the mother. So, too, where the undivided interest of a deceased Mitakshara coparcener devolves on his widow, such interest when it goes back to the son or grandson is taken by them as their father’s property and not as the mother’s property and will consequently be ancestral property. When the karta of the Joint Family property sold joint Hindu Family Property and it is thereafter that he purchased the property in dispute, he having no other nucleus from which he could purchase the property, the court held that the property purchased retained its character of a Joint Hindu Family Property.”
12. I am not inclined to accept the principles that the property is not available for partition. If the scheduled property is subjected to mortgage by defendant No.1, that too, as a security for the repayment of the debt or loan borrowed by third party viz., Pruthviraj Jain, more particularly, an outsider, cannot totally bind the jointness. At the end of the day, it binds to the share of coparcener whether head of the family or member of the joint family whether as coparcener or otherwise whether knowingly or otherwise when a debt is incurred by the head of the family, the factor that come to the aid of such Kartha or the head of the family are legal necessity and or benefit to the estate.
13. It is a onus or responsibility on the Kartha to watch and guard the joint family. His hasty or thoughtless decision may cost him dear more particularly, when it matters sale or other kinds disposal of properties of the joint family, he is supposed and also under an obligation to take wise, thoughtful and a careful decision which is least injurious to interest of joint family under legal necessity. He has to examine as to whether transfer or disposal is absolutely unavoidable. The compelling necessity may be to alert a major loss or risk, to take out or to prevent the family from entering a disaster. Further, the decision must be conscionable, a property worth lakh of rupees cannot be sold to clear a family of debt which is in thousands, more particularly, when the alternative is available with the family.
14. The conclusion of the learned trial Judge regarding collusion does not arise for the very reason Ubi Jus Ibi remedium (wherever there is right their lies remedy) . The exercise of right in respect of what is vested cannot be laced with paint of colour. I find that the learned trial Judge erred in dismissing the suit and denying the share to the plaintiff. Hence, the judgment and decree passed by the trial Court is liable to be set aside.
15. Accordingly, the appeal is allowed.
The judgment and decree dated 26th February 2010 passed in O.S.No.4657/2006 by the trial Judge is hereby set aside. Consequently, the suit of the plaintiff is decreed granting 1/3rd share to the plaintiff.
Draw the Preliminary decree accordingly.
tsn* Sd/- JUDGE