Padminibai vs Arvind Purandhar Murabatte and Others

Chandrakantaraj URS, J.—This appeal is by the legal representatives of deceased defendant 2. We will refer to the parties by the ranks assigned to them in the Trial Court.

Plaintiff is the wife of the 1st defendant and mother of defendants-2 and 3. She brought the suit, claiming her share alleging that the suit schedule properties were the joint family properties; that she is entitled to a share and that the partition claimed to have taken place in the year 1960 excluding her was not binding on her. Therefore, she prayed for a decree for partition of all properties by metes and bounds. She also prayed for an injunction against creditors, namely, defendants-4 to 20 who has obtained decrees against the joint family properties.

Defendants resisted the suit. Soon after the suit was filed, defendants 1 and 2 died and their legal representatives were brought on record. In that circumstance defendants 2A and 2E appeared through their counsel and filed a joint written statement in which they admitted that plaintiff was the wife of defendant-1 and mother of defendants- 2 and 3, and they were members of the joint Hindu family and defendants 2A and 2E have shares in ''C'' schedule properties as the members of the joint family. They however contended that plaintiff was not entitled to the relief to the extent of her share as claimed in the suit. They admitted that the decrees obtained by other defendants except defendants-1 to 3 are not binding on them or their share in the suit properties and those decrees cannot be executed against their shares unless and until shares of plaintiff and defendants are determined finally. In other words the written statement was more or less in total support of the plaint allegations.

Defendant 28 appeared through his advocate and filed his written statement which was not dissimilar to the one filed by defendants 2A and 2E.

Defendant-4 also appeared by advocate and filed her written statement. She contended that the suit was false, collusive and vexatious and without any cause of action. The version put forward by plaintiff that she is not bound by the decree obtained by defendant-4 against the firm in original suit No. 17/1965 was not binding on her etc. was denied.

Defendant-17 died during the pendency of the suit, defendants 17A to 17H were brought on record as his L.Rs as per the order passed on IA-No. 12. Defendant No. 6 died during the pendency of the suit and his L.Rs were brought on record as defendants 6A to 6H.

As per the joint memo filed, the suit of the plaintiff as against defendants-5, 6A to 6H, 7, 8, 15, 16, 17A to 17H and 18 to 21 was dismissed as settled out of court. Therefore the written statement filed by defendants, 6, 6A to 61L 7, 8, 15, 16, 17A to 17H and 18 was not relied upon by the trial court. We do not think it necessary to advert to the stand by the other defendants.

On the pleadings as many as 8 issues were framed and they are as under:

" 1) Whether the plaintiff proves that partition was effected by defendants-1 to 3 keeping her in darkness in 1960?

2) Whether the plaintiff is entitled to reopen the partition to claim her legitimate share?

3) Whether the plaintiff proves that the schedule ''D'' properties have been purchased out of the savings of agricultural income of the joint family?

4) Whether the plaintiff proves that schedule E properties are of the joint family moveables?

5) Whether she further proves that the decree and the charges created on the suit properties do not affect her share?

6) Whether the plaintiff is entitled for the partition?

7) Whether the plaintiff is entitled for the injunction sought?

8) Whether the plaintiffs suit is barred by time?"

Issues Nos. 1 and 2 were answered in favour of the plaintiff. Even issue No. 3 was answered in her favour but qualified with a finding that the schedule D properties were purchased out of the savings of the income from agricultural lands of the joint family as well as the income of the joint family firm. Issue No. 4 was also answered in her favour. Issues Nos. 5 and 7 were held against her. The suit was accordingly decreed.

Aggrieved by the findings recorded against her on issues Nos. 5 and 7 the plaintiff and L.Rs of defendant-2 have preferred the present appeal.

Sri Balakrishna Shastri, appearing for the appellants strenuously contended before us that the doctrine of pious obligation cannot be extended to the share of a female Hindu and therefore the trial court completely erred in law in holding that the creditors of the joint family who had obtained decree cannot execute the same against her 1/4th share. In other words the argument in a sense is self defeating or should be held to be in conflict with the interests of the other two appellants who are the legal representatives of the son of the 1st defendant and husband of the plaintiff. In other words the argument states that it is not binding on the first plaintiff but is binding on appellants-2 and 3. He referred to some of the decisions to which we will shortly advert.

In the case of Keshav Nandan Sahay v. Bank of Behar AIR 1977 Pat 1851, the Division Bench of the Patna High Court following the earlier decisions of the Supreme Court held that the share of a female Hindu at a partition in the Mithakshara School cannot be saddled with any pious obligation. In para-15 of the judgment the learned Judges of the Division Bench observed:-

"The doctrine of pious obligation could not apply to the wife and she therefore could not be liable to the creditors on the principles applicable to the sons."

With that proposition we cannot have any quarrel. Pious obligation as held by the Supreme Court in the case of Venkatesh Dhonddev Deshpande Vs. Sou. Kusum Dattatraya Kulkarni and Others, clearly laid down that if the sons of a Hindu father take interest in the ancestral property in the hands of the father by the incidence of birth they also incur the corresponding obligations of discharging the debts incurred by the father either for his own benefit or for the benefit of the family.

Therefore, wife not being a person entitled to a share in the Mithakshara by birth she certainly is not hit by the doctrine of pious obligation. But the question is whether the facts of this case which we have set out earlier attracts the doctrine of pious obligation. The case of the plaintiff is that she was not given a share in the partition of 1960 which was the compelling reason for her to present the suit for partition in 1973. If a sharer who is entitled to a share is excluded from a partition of joint family properties then such a partition would be voidable and the person so excluded is entitled to reopen the partition. Therefore, when the suit was filed and issues were raised regarding the status of the family and was answered in favour of the plaintiff then the presumption is that the property remained joint on the date of the suit. When provision is made at a partition to discharge the liability on the joint estate then it cannot be concluded that there is no pious obligation for the surviving coparceners to discharge the debts incurred by the Karta of the family. On the other hand it was the plaintiff who settled out of court the claims of some of the creditors along with the other two appellants who are none other than her grand children. Having settled out of court with some of the creditors she cannot now set up that her undivided share does not suffer from any liability on account of the decrees obtained by the other creditors whose claims have not been settled out of court.

The observations made in the case of Smt. Laltabai Gopalrao Naik Vs. Krishnarao Naik and Others, is not really of much assistance to the first appellant plaintiff. The facts of that case were that there was a partition but to the exclusion of the wife. Therefore, it was held that the mother under the Mithakshara Law had no right to demand partition of the joint family property, but was however entitled to a share equal to that of a son, if a partition took place between the sons. If there is no actual division of the family property by metes and bounds and there is merely a severance of interest between the sons, her right to a share does not come into existence. The reference to division of property was obviously to its distribution between the sons for the sons could not divide the right of the mother merely by their omission to apportion her share and place her in possession but merely provide for her maintenance. That observation was made having regard to the ruling of the Privy Council in the case of AIR 1936 20 (Privy Council) The Division Bench of the Madhya Pradesh High Court was actually explaining an earlier ruling of that High Court in order to explain that the right of the mother to a share cannot be defeated by reason of absence of physical division and putting the sharers in possession. No doubt they held that the mother''s share was not liable for attachment of decrees obtained against the divided sons. The facts here are different.

In this case what has happened is, on account of the exclusion of the mother at the partition of 1960, it has become voidable and estate has become ancestral and has to be divided hereafter by virtue of the decree granted by the court. Therefore the share to which the plaintiff is entitled after the institution of the suit has been enlarged from 1/4th to a little more than 1/4th on account of the death of defendant-1, her husband. It is to be worked out now in the final decree proceedings in respect of the suit schedule properties. While working out her share it cannot be said that she must be given properties free of encumbrance while the other surviving coparceners alone may be saddled with the liabilities of the estate, We must point out that the position arising on account of the doctrine of pious obligation is different in the case of a partition which is yet to take place from that where partition has taken place.

Therefore, the trial court came to the correct conclusion that she was not entitled to the injunction she has prayed for against the creditors as there was no question of her share being excluded from the liabilities which the entire joint family was subjected to in the course of its transactions with other defendants who were arrayed because they were creditors.

We do not see any merit in this appeal, we therefore reject it.

Appeal rejected