Gopala Prabhu Narasimha Prabhu vs Yamuna Ammal and Others

Pltf. is the applt. He sued for a declaration that Ex. A was only a maintenance Udampadi, that with the death of minor Gopala Prabhu, the son of the first deft. the arrangement for separate enjoyment of the properties came to an end & that as the manager of the joint family the pltf. is entitled to be in possession of all the properties of the joint family. He also sought to recover possession of the plaint items with mesne profits at the rate of Rs. 210 per year after setting aside the mtge. deed dated 80-7-1117 executed by deft. 1 in favour of deft. 2 & also the lease deed dated 26.3 1112 executed by deft. 1 in favour of deft. 3

The pltf & his deceased elder brother, Rama Prabhu, were members of an undivided joint Hindu family. Deft. 1 is the widow of Rama Prabhu, who died in the year 1102, leaving a son by name Gopala Prabhu & a daughter by name Ganga Ammal. The pltf. continued to manage the joint family from the year 1102 to the year 1108, & deft. 1 & her two minor children were also living with the pltf. in the joint family. On 8-6-1108 Ex. A partition deed was executed by which the pltf. & minor Gopala Prabhu became divided in interest. Deft. 1 took part in the execution of EX. A as the guardian of her minor son Gopala Prabhu. All the assets & liabilities of the joint family were divided into two equal shares, the pltf. taking one such share, the other share being set a part to minor Gopala Prabhu. Even before attaining majority, Gopala Prabhu died in Kumbhom 1117. Boon after that, the present suit was instituted by the pltf. on the basis that himself & Gopala Prabhu continued to be members of a joint family in spite of the execution of Ex. A partition deed. His suit is essentially in his capacity as the alleged manager of the joint family. It was alleged in the plaint that deft. 1 has been leading an immoral life & has accordingly became disqualified to succeed to the estate of Gopala Prabhu or even to get maintenance from the joint family. Deft. 1 resisted the suit & contended that Ex. A was an outright partition deed by which the pltf. & Gopala Prabhu became divided in interest, that the properties set apart to the share of Gopala Prabhu could not revert to the joint family which had already ceased to exist but could only devolve on his legal heirs, & that the pltf''s suit as the head of the joint family is unsustainable. She also maintained that the two documents executed by her in favour of defts. 2 & 3 are supported by consideration & necessity binding on Gopala Prabhu & his heirs. The alleged disqualification urged against her was also denied by her. Defts. 2 & 3 also supported deft. 1''s. contentions. The trial Ct. upheld the contentions raised by the deffcs. & dismissed the pltf''s. suit as unsustainable. Hence this appeal by the pltf. The first deft.-resp. has filed a memo of objection in respect of certain findings recorded against by the lower Ct.

In the nature of the case put forward by the pltf. in his plaint, the essential question for decision in this appeal is whether the pltf. & Gopala Prabhu became divided in interest with the execution of Ex. A partition deed dated 8-6-1108 or whether they continued to be members of the joint family even after the execution of that document & in spite of it. This question has primarily to be decided on a construction of Ex. A itself. The lower Ct. has construed this document as an out & out partition deed. On going through the document we are satisfied that this finding of the lower Ct. is correct. There is no doubt or ambiguity about the several clauses embodied in the document. On the other hand, from the start to the finish the dominant idea underlying the document is that the parties contemplated a severance of interest when they executed Ex. A.

Ex. A is styled as a partition deed. The preamble to the document states that the document is being executed to implement the idea of the parties to put an end to the joint management of the properties to which the pltf & Gopala Prabhu were equally entitled. In Clause 1 it is stated that all the assets including the movable & immovable properties belonging to the joint family & all the liabilities of the joint family were ascertained & valued with the help of the mediators & that these were divided into two equal shares. The two schedules were numbered & these numbers were noted on two slips out of which the minor Gopala Prabhu was made to pick up one slip at random & the schedule indicated by the number noted in that slip was allotted to his share. The schedule denoted by the other number was allotted to the share of the pltf. In Clause 2 of Ex. A it is stated that the properties included in these schedules were taken by the respective sharers with absolute rights. In this manner the Sch. A properties in Ex. A were set apart to the share of the pltf. & the Sch. B properties were set apart to the share of the minor Gopala Prabhu. In Clause 3 of Ex. A it is stated that the pltf. will no longer have any right in the properties included in the sch. B & that Gopala Prabhu will no longer have any right in the properties included in the sch. A. It is further stated that the two sharers were to take possession of such properties which were in the direct possession & enjoyment of the joint family till that date & the other items out. standing on mtges. are to be redeemed by them on payment of their proportionate share of the mtge. amount. Provision is also made for mutation of names & for obtaining separate patta & for payment of separate tax. It is significant to note that even the movable articles were separately allotted to the two sharers. Provisions are made for the conduct of certain religious ceremonies by each of the sharers contributing equally. Another significant provision in Ex. A is in respect of the discharge of the debts allotted to each of the sharers. It is definitely stipulated that if due to the default of any one sharer in the due payment of these debts the other sharer is made to sustain any loss, the latter will be entitled to recover such loss from the other sharer & that such amount will be a charge on the properties set apart to his share. There is also a provision in Ex. A that the division effected under it was to be a permanent one. As against all these clinching provisions in Ex. A there is practically no provision to suggest that the arrangement was meant to be a mere maintenance allotment.

In Clause 4 of Ex. A it is stated that deft. 1 was to be the guardian of minor Gopala Prabhu & to manage the properties set apart to his share until he attains majority & that the guardian was to deposit the surplus income from those properties in Govt. Savings Bank or invest the same in Immovable properties acquired in the name of the minor. In the concluding portion of this clause, it is stated that on Gopala Prabhu attaining majority he was to enjoy the properties included in sch. B with absolute powers. It is mainly on the strength of this provision that a case is attempted to be made out on behalf of the pltf. that the partition deed Ex. A was meant to become final & effective only after ratification by Gopala Prabhu on his attaining majority. We see no force in such a contention advanced on behalf of the pltf applt. All that was meant by the aforesaid provision was that deft. 1''s guardianship was to terminate on the minor attaining majority & that thereafter he was directly to deal with the properties as their absolute owner. As already stated, a reading of Ex. A as a whole leaves no scope for doubting its purport as an out & out partition deed. It is also seen that both the pltf. & deft. 1 understood the document in that light & were dealing with the properties separately. Exs. XXV to XXVIII are the documents executed by the pltf. in respect of the properties which he got to his share under Ex. A and those documents range from the year 1108 to the year 1114. All these documents have been executed] by him on the basis that Ex. A is an oat right partition deed & that he had absolute rights to deal with the properties set apart to his share under that document. In view of all these facts & circum. stances, we see no reason to interfere with the findings recorded by the lower Ct. that by the execution of the partition deed Ex. A Gopala Prabhu & the pltf. became divided in interest, the from that date onwards they ceased to be members of a joint family & that the pltf. cannot claim himself to be manager of any such joint family or to claim possession of the plaint properties in that capacity. These findings are, therefore, confirmed. These findings are by themselves sufficient to non-suit the pltf.

The learned Counsel for the applt. advanced an alternative contention that the pltf. must be held to be competent to maintain the present suit in his capacity as a reversioner on whom the estate left by deceased Gopala Prabhu is ultimately to devolve. At the outset it is to be stated that such a new case cannot be allowed to be set up for the first time in the appellate ct. In the plaint no such alternative case was set up by the pltf. Since he was taking his stand as the manager of the joint family he could not also set up a new case that he was a reversioner in respect of the estate left by Gopala Prabhu. Even on the basis of the admitted facts, it is dear that the pltf. could only be a remote reversioner Besides Gopala Prabhu''s mother, deft. 1 there is his sister Ganga Ammal & it is state on behalf of deft. 1 that there is a son born to Ganga Ammal. u/s 2 , Travancore Hindu Law of Inheritance (Amendment) Act (Act III [3] of 1111), the Sister & the sister''s son take precedence in the order of succession to the father''s brother. The pltf. being only a remote reversioner, could question the alienations made by deft. 1 only under certain special circumstances. He could sustain such. a suit only if it is shown that the nearest reversioner has without sufficient cause or in collusion with deft. 1 omitted to institute proceedings to protect the estate. No such allegations have been made in the plaint in this case & the nearer reversioner have also not been made parties to the suit, for all these reasons the attempt of the applt. pltf. to take his stand in the present suit as a remote reversioner cannot be countenanced. In this view of the matter, the question whether deft. 1 has become disqualified to succeed to the estate of her son Gopala Prabhu & if so when, does not arise for decision in this appeal. Accordingly we do not propose to go into that question. The resp''s objection memo is allowed to this extent.

In the result the decree of the lower Ct. is confirmed & the appeal is dismissed with costs.