AI Structured Summary
Not yet generated for this judgment
Judgment
Krishna Saran Srivastava, J.—The defendant in OS 18/1979 is the appellant.
The respondents are the sons of the appellant. They instituted a suit for partition and separate possession of the plaint schedule property through their mother, being natural guardian, alleging that the appellant and the respondents are the members of joint Hindu family which owns ancestral joint family property, that is the plaint schedule property. They alleged that the appellant ill-treated their mother due to which she had to stay away from him with the plaintiffs from the year 1975. They are entitled to 2/3 share in the plaint schedule property and separate possession. The appellant denied the claim of the respondents alleging that the mother of the respondents had no locus standi to file a suit for partition and separate possession because she was not appointed as guardian by the competent Court. He has denied that the respondents have got 2/3 share in the plaint schedule property. He has further pleaded that he was not the pattadar of the land bearing Survey Nos. 141/1 to 141 /8 and 129/1 and he is only a shareholder in respect of Survey Nos. 234, 235 and 590. He has pleaded that the suit house is not ancestral property, but it is the self-acquired property of the defendant. He has further pleaded that under these circumstances, the suit deserves to be dismissed.
On assessment of the evidence on record, the lower Court reached the conclusion that the mother of the respondents has no interest adverse to them and, therefore, she is entitled to file a suit for partition and separate possession on their behalf and the suit schedule property is the ancestral property in the hands of the appellant. Rejecting the contention of the learned counsel of the appellant, the trial Court held that though after the death of his father the appellant being the sole surviving coparcener of the plaint schedule property became its owner by survivorship, yet after the respondents were born to him they became the coparceners with, the appellant and the plaint schedule property became the coparcenary property and, therefore, the respondents have got V, share in the plaint schedule property. It also concluded that nonjoinder of the illegitimate son of the appellant is not fatal to the suit for partition because the property to be partitioned is the coparcenary property and not separate property.
Feeling aggrieved by the order and judgment of the lower Court, the appellant has preferred this appeal.
Testing the facts of the case on the touch stone of the principles of law laid down in the cases of Shrinivas Krishnarao Kango Vs. Narayan Devji Kango and Others, , K.V. Narayanaswami Iyer Vs. K.V. Ramakrishna Iyer and Others, and Baikuntha Nath Paramanik (Dead) by his L.Rs. and Heirs Vs. Sashi Bhusan Pramanik (Dead) by his L.Rs. and Others, . I am of the opinion that a presumption can be safely raised that the plaint schedule property was acquired from the income of the ancestral property owned by the appellant''s fattier and grandfather because admittedly there was ancestral property in possession of the joint Hindu family consisting of the appellant and his father having sufficient nucleus to make the subsequent acquisitions and, therefore, the lower Court has concluded, and rightly so, that the burden of proof rested with the appellant to establish that the plaint schedule property had been acquired not out of the family funds, but from his own earnings.
Relying on the case of Malchand Thirani and Sons Vs. Commissioner of Income Tax, . It has been urged on behalf of the appellant that after the death of the appellant''s father, his interest in Mitakshara coparcenary property devolved by survivorship upon the appellant who was then the sole surviving member and, therefore, the nature and character of the ancestral property under the Mitakshara Law has been completely abrogated vide proviso to main Sections 6 and 8 of the Hindu Succession Act, 1956 (hereinafter referred to as ''the Act) and thus the property in his hand cannot be treated as the property of the joint Hindu family.
On the other hand, it has been urged on behalf of the respondents that the appellant had inherited the property by survivorship because the respondents were not born to him at the time of the death of his father, but the moment he begot the respondents, they acquired a right by birth in that property, that is to say the plaint schedule property, because the joint family property when comes to be held by a single coparcener, there is neither an extinction of the family nor a complete transmutation of the character of the property and, therefore, the lower Court has rightly held that the respondents have got 2/3 share in the plaint schedule property and the appeal deserves to be dismissed.
A division Bench of the Mysore High Court in the case of S. Melagiriyappa v. Lalithamma, AIR 1961 Mys 152, has held:
"The fact that the Mitakshara recognises proprietary rights in respect of joint family property only of the males while conferring only such rights or right to maintenance on the females does not mean that a Mitakshara joint family should consist only of men and not of women also. So also the character of the family property does not change by reason of the fact that it may come to be held by a single male coparcener because if and when the male coparcener either begets or adopts a son or the widow of a deceased coparcener makes an adoption the son so born or adopted, acquires a right by birth or adoption in that property. Thus when joint family property comes to be held by a single coparcener there is, according to the theory of Mitakshara law, neither an extinction of the family nor a complete transmutation of the character of the property."
In the case of Davaluri Ramaiah Vs. Bodepudi Venkata Subbaiah, , relevant passages relating to the issue in question from Mulla''s 12th edition and Mayne''s ''Hindu Law and Usage'' have been quoted which are reproduced below.
"In Section 34, page 101 of Mulla''s 12th edition, it is stated that even if the deceased was joint at the time of his death, he might have left self-acquired or separate property. Such property goes to his heirs by succession according to the order given in Section 43, and not to his coparceners. Again at Page 102, it is said that if the deceased was separate at the time of his death from his coparceners, the whole of his property, however, acquired, will pass to his heirs by succession according to the order given in Section 43.
Dealing with a share allotted on partition, this is what is said at page 327:
"The share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issue. They take an interest in it by birth, whether, they are in existence at the time of partition or are born subsequently. Such share, however, is ancestral property only as regards his male issue. As regards other relations, it is separate property, and if the coparcener dies without leaving male issue, it passes to his heirs by succession."
The proposition is similarly stated in Mayne on ''Hindu Law and Usage''. This is what is said at Page 351 (11th edition).
"All property which is not held in coparcenary is separate property and Hindu Law recognises separate property of individual members of a coparcenary as well as of separate members.... Property which a man takes at a partition will be his separate property as regards those from which he has severed but will be ancestral property as regards his own male issue."
Again at Page 584, it is stated:
"The Mitakshara law of inheritance therefore applies exclusively to property which was held in absolute severalty by its last owner.
Such property will include (I) self-acquisitions of the last male owner: (2) property inherited by him from his collaterals, mother or maternal grand father; (3) property which was allotted to him for his share at a partition with his coparceners and (4) property which vested in him exclusively as the last surviving coparcener."
Section 6 of the Act applies only to Mitakshara Coparcenary property and it does not apply inter alia to the property held by the deceased as the sole surviving coparcener. The main part of this Section says that where a Hindu dies having at the time of his death an interest in Mitakshara coparcenary property his interest in the property shall devolve by survivorship upon the surviving members of the coparcener. It cannot be gainsaid that a coparcenary cannot consist of a single individual even if the property in his possession is coparcenary property.
In the case of Malchand Thirani and Sons v. Commissioner of Income Tax, West Bengal (4 supra), Iswardas and his sons had separated from each other. They ceased to be the coparceners after the partition. Therefore, it was held in that case that the house properties also ceased to be coparcenary properties, after the partition and, therefore, the main Section 6 of the Act was not applied In respect of those house properties. The proviso to main Section 6 of the Act was not found applicable because at the time of the death of Iswardas, he left no surviving coparcener. In this case it was held that Section 6 had no application to the property received by a member of a Joint family on partititon because the nature and character of ancestral property under the Mitakshara Law had been completely abrogated where the provisions of Sections 6 and 8 with the Schedule and Section 19 of the Act were not applicable. In this case, the question whether the interest in the coparcenary property in the hands of the sole surviving coparcener would be treated as coparcenary property after the sons were born subsequent to inheritance by survivorship to the sole surviving coparcener was not involved and, therefore, this case is of no help to the appellant.
It is well settled that the rule of survivorship comes Into operation only when the deceased does not leave him surviving a female relative classified in Class I or a male relative in Class I who claims through such female relative in Class I and II where the deceased has not made testamentary disposition of his undivided share in the coparcenary property. There is nothing in Section 6 of the Act or in any other provision of this Act preventing the application of the rule of Hindu Law as to the acquisition by birth and when there is a possibility of the heir having a son in future. Though at the time of succession by survivorship it may make the coparcenary property as a separate property, but it gets converted into coparcenary property immediately when a son is born or adopted by the sole surviving coparcener.
As noted above, the share which a coparcener obtains in the ancestral property is ancestral property as regards the male issue who takes an interest in it by birth. Whether he was in existence at the time of succession or born subsequently, but such share however is the ancestral only as regards his male issue. There is no provision in the Act which is inconsistent to the aforementioned settled law. Similarly, there is no provision in the Act which provides that the subsequently born son cannot become a coparcener with his father who had inherited interest of his father as the sole surviving coparcener and, therefore, the provisions of Section 4 (sic. 6) of the Act are not at all attracted.
For the foregoing reasons, I respectfully agree with the view taken by the Division Bench of the High Court of Mysore in the case of S. Melagiriyappa v. Lalithamma (5 supra) that the character of the family property does not change merely by reason of the fact that it has come to be held by the sole surviving male coparcener and if and when the male coparcener either begets or adopts a son, the subsequently born son or adopted son acquires a right by birth in that property because the joint family property held by a single coparcener is, according to the Mitakshara Law, there is neither an extinction of the family nor a complete transmutation of the character of the property. The upshot of the aforementioned discussion of law is that the respondents though born subsequent to the death of their grandfather and inheritance of his share in the coparcenary property by his father, that is the appellant, as the sole surviving coparcener have got a right in the plaint schedule property being coparcener with his father immediately on the their birth because they had a rightly birth in it and, therefore, they are entitled for a decree of declaration that they have got 2/3 share in the plaint schedule property.
No other or further point was argued by the learned counsel of the appellant and the points that were raised have been decided as aforesaid.
In result, the appeal fails and is hereby dismissed. The judgment and decree of the lower Court are hereby confirmed. The appellant shall bear his own costs as well as the costs of the respondents. Counsel''s fee as per scale if certified. A decree be drawn up accordingly.