IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:MR. JUSTICE A.HARIPRASAD
29TH DAY OF SEPTEMBER 2016
RSA.No. 996 of 2009
Citation: AIR 2017 (NOC) 211 Ker
The substantial questions of law arising in this second appeal are thus:
i. Is the finding of the courts below that the plaint schedule property did not form part of the joint family property of deceased Veluchami Erappa Kounder (hereinafter, “Veluchami”) legally correct in the light of the available evidence?
ii. Does the judgment in Chittur Service Co-operative Bank Ltd. v. Kumaran (1992 (1) KLT 216) apply to the facts and circumstances of this case? Does the ratio in the decision have an all pervasive application, regardless of the facts in each case?
iii. Are the findings by the courts below that marriage between deceased Veluchami and his second wife, the 1st appellant, was not legally valid and she is not entitled to any share in his properties correct?
2. Defendants 2 and 4 in O.S.No.124 of 1995 on the file of the Court of Munsiff, Chittur are the appellants. The plaintiff and other defendants are the respondents.
3. Heard the learned counsel appearing for the appellants and respondents 1 to 3.
4. The suit is one for partition with following averments: The properties belonged to Veluchami. He had married defendants 1 and 2. His first wife (1st defendant) died pending the suit. Her legal representatives are the plaintiff and defendants 3 to 5. No issue was born to Veluchami through his 2nd wife (2nd defendant). Plaintiff and other contesting defendants are the children born to Veluchami through the deceased 1st defendant.
5. The properties originally belonged to the family of Kumarachami Kounder. On 26.09.1956, Kumarachami Kounder, and his children, viz., Veluchami and Pazhanichami partitioned the properties as per Ext.A1 partition deed. It is recited in Ext.A1 that the property devolved on Kumarachami Kounder as per a partition in 1098 ME (corresponding to 1933 Christian Era). The recitals in Ext.A1 would clearly show that the properties were ancestral in nature. As per Ext.A1, the plaint items were set apart to Veluchami in A schedule. Veluchami died in the year 1990. After his death, the property devolved on the plaintiff and defendants. As the contesting defendants were not willing to amicably effect a partition, the suit was filed.
6. Defendants 1, 2 and 4 filed a joint written statement opposing the plaint averments. Veluchami obtained the properties by virtue of Ext.A1 partition deed is an admitted fact. It is contended by the defendants that even before Ext.A1 partition, the defendants 3 and 5 were born in the family. They had 2/3 right over the property as the properties set apart to Veluchami were joint family properties. The defendants 3 and 5 are the coparceners born in that joint family. They released their rights in the co- parcenery property in favour of their father Veluchami and mothers, viz., defendants 1 and 2, by virtue of Ext.B1 document in the year 1978. By virtue of Ext.B1 release deed, the property exclusively belonged to Veluchami and defendants 1 and 2. Neither the plaintiff nor defendants 3 and 5 has any right over the property. After the release deed, the joint family ceased to exist and the suit properties are not available for partition.
7. Veluchami and his children incurred a debt as per the decree in O.S.No.221 of 1975 before the Court of Munsiff, Chittur. For discharging the debt, the properties were possessorily mortgaged in the year 1975 in favour of the husband of 4th defendant, by name Thankavelu. Later, some more amounts were received by Veluchami and others from him in order to discharge another decree debt in O.S.No.372 of 1974 of the same court. Therefore by virtue of the possessory mortgage, Thankavelu became the absolute owner of the property, as he prescribed title by adverse possession and limitation. For that reason also, the suit is not maintainable. It is the common case of the parties that they are governed by Hindu Mithakshara Law as modified by custom. So, in the absence of any specific custom pleaded and proved, the principles of Hindu Mithakshara Law will have to be applied to them.
8. The case had a chequered career. Originally the suit was decreed vide judgment dated 20.12.1996. A preliminary decree for partition was passed directing to divide the plaint schedule properties into six equal shares and the plaintiff was found to be entitled to one share. The defendants were also found to be entitled to one share each in the property. Aggrieved by the judgment and decree, the defendants 1, 2 and 4 took up the matter in appeal before the District Court, Palakkad as A.S.No.45 of 1997. The lower appellate court found that an order of remand was essential for raising an issue regarding nature of the property and the rights of defendants 3 and 5 thereon. According to the learned Additional District Judge, number of shares would change according to the findings on this issue.
The issues cast touching on the non-joinder of necessary parties and adverse possession and limitation were concluded in favour of the plaintiff by the lower appellate court in the first round of litigation and now they have become final. Subsequent to the remand, the trial court reconsidered the surviving issues and again the suit was decreed. A preliminary decree for partition was passed. But, this time the trial court found that the plaintiff was entitled to get 1/4th share in the plaint schedule properties. The obvious reason was that the 1st defendant, mother of the plaintiff and defendants 3 to 5, expired in the meantime resulting in augmentation of their share. That apart, it was found that the 2nd defendant, who claimed to be wife of Veluchami, has no right over the property as her marriage with Veluchami was in violation of the provisions of the Hindu Marriage Act, 1955 (in short, Act of 1955″).ÿ9. Again the matter was taken up in appeal before the District Court, Palakkad. The learned District Judge re-appreciated the evidence and dismissed the appeal. Relying on the principles laid down in Co- operative Bank’s case (supra) the lower appellate court found that the properties in dispute were the self acquired properties of Veluchami. Therefore, the defendants 2, 3 and 5 have no right over the property. That apart, the 2nd defendant was found to be not entitled to any share in Veluchami’s property because her marriage with him was invalid. With these reasonings, the trial court’s judgment and decree were confirmed.ÿ10.
Learned counsel for the appellants contended that the lower appellate court and the trial court went wrong in deciding the case by placing reliance on the decision in Co-operative Bank’s case. In that case, the properties belonged to one Mallu.
He had a son by name Pazhanimala. 1st defendant therein was the son of Pazhanimala. Pazhanimala died in 1963. The disputed property along with other items had been partitioned among Pazhanimala’s sons in the year 1965. The properties included in the B schedule to the partition deed were set apart to the share of the 1st defendant. Plaintiffs were the children of the 1st defendant. The parties were Ezhavas of Chittur Taluk, governed by Hindu Mithakshara Law as modified by custom. Plaintiffs claimed four out of five shares in the property contending that the property belonged to a joint family constituted by the 1st defendant and his children. The 2nd defendant, viz., the Co-operative Bank, filed a written statement contending that the plaintiffs were not entitled to any share since the property had been set apart in a partition to the individual share of the 1st defendant.
They contended that the plaintiffs had no right by birth over the properties. 1st defendant, while working as Secretary of the Bank, had misappropriated large amounts and for realising the same, an arbitration proceeding was initiated before the Joint Registrar of Co-operative Societies.
The properties belonging to the 1st defendant were attached. It was the definite contention of the Bank that the plaintiffs were not entitled to any right in the separate property of the 1st defendant.ÿ11. A learned Single Judge of this Court examined the apparent conflict in the judicial opinions as to whether a property devolved on a coparcener by partition partakes the character of his separate property or it retains the character of a joint family property. After surveying various decisions touching on Sections 4, 6 and 8 of the Hindu Succession Act, 1956 (in short, “Act of 1956”) the learned Single Judge in paragraphs 16 to 18 held that a property allotted to a Hindu in a partition of joint family properties has to be treated as his separate property over which he has a right of disposition. Statement of facts in the said decision do not reveal a crucial aspect whether the plaintiffs were born before or after 1965, the year in which the family properties were partitioned. Learned counsel for the appellants seriously challenged correctness of the above proposition as a universal rule, applicable to all situations.ÿ12. It is revelant to note that the Supreme Court in Uttam v. Saubhag Singh and others (2016 (4) SCC 68) has recently considered a similar question.
The plaintiff in a suit for partition appealed to the Supreme Court. Along with others, the plaintiff had impleaded his father and three brothers of his father. Plaintiff claimed 1/8th share in the property on the footing that the suit property was ancestral property and that he, being a coparcener, had a right by birth in the suit property in accordance with the Mithakshara Law. In the written statement filed by the defendants, including the plaintiff’s father, it is contended that the suit property was not ancestral property and that a partition had taken place earlier by which the plaintiff’s father had become separate. The trial court decreed the suit. The first appellate court confirmed the finding that the property was ancestral. However, it held that the plaintiff’s grand father, Jagannath Singh, having died in 1973, and his widow, being alive at the time of his death, share of Jagannath Singh should be distributed in accordance with Section 8 of the Act of 1956. The lower appellate court therefore reasoned that no joint family property remained to be divided when the suit for partition was filed by the plaintiff. The plaintiff had no right to sue for partition while his father was alive, as father alone was a Class I heir. Therefore, the suit was dismissed. The High Court in second appeal confirmed the lower appellate court’s judgment and decree. The Supreme Court took note of the fact that the plaintiff was born only in 1977. For that reason alone, no share could be allotted to him in a partition effected after his grand father’s death in 1973 and before 1977. The Supreme Court noticed that the plaintiff’s case was that he was entitled to 1/8th share on dividing the entire joint family property between eight co-sharers. With a specific reference to Section 8 of the Act of 1956, the Supreme Court held that death of Jagannath Singh would make the property in the hands of plaintiff’s father, uncles, et al., no longer a joint family property. In the decision, the Supreme Court did not consider the effect of birth of a male child in a Hindu joint family before the date of division of the coparcenary properties. However, the principles in the above decision are totally inapplicable to this case as the factual settings are different.13.
Coming to the case on hand, the unchallenged pleadings and evidence show that the defendants 3 and 5 were born in 1945 and 1949 respectively. On a perusal of Ext.A1 partition deed dated 26.09.1956, it can be seen that the properties dealt with therein were ancestral properties. “Ancestral property” is a technical term. It has a special meaning. It does not mean property inherited from any ancestor, male or female, paternal or maternal, near or remote. But, only such property as is inherited by a male from his father, father’s father and father’s father’s father. Such inheritor’s son, son’s son and son’s son’s son get an interest in it by birth. Even Veluchami’s father Kumarachami Kounder had acknowledged in Ext.A1 that the properties belonged to a coparcenary consisted of himself and his two male children. In the light of these clear recitals in Ext.A1 regarding nature of the properties, that they were ancestral properties in the hands of Kumarachami and his children including Veluchami, the pertinent question is whether the principles in Co- operative Bank’s case and Uttam’s case can be applied to this case. It is apposite to note that the facts in both the cases mentioned above do not show that the plaintiff/plaintiffs concerned was/were born before division of the properties among the coparceners. In this case, it is an undisputed fact that as on the date of Ext.A1, both the defendants 3 and 5 were born to Veluchami, albeit they were not included in Ext.A1.14.
At this juncture, it is highly essential to have a revisit to certain concepts, viz., the nature of joint family and coparcenary and also the right by birth in a coparcenary property.15. A Hindu joint family consists of male members descended lineally from a common male ancestor, together with their mothers, wives or widows and unmarried daughters bound together by the fundamental principle of “sapindaship” or family relationship which is the essence and distinguishing feature of the institution. Coparcenary is a body narrower than a joint family and consists of only those persons who have taken by birth an interest in the property of the holder for the time being and who can enforce a partition (see Gowli Buddanna v. C.I.T. – AIR 1966 SC 1523; Narendranath v. C.W.T. – AIR 1970 SC 14). Coparcenary commences with a common ancestor and includes a holder of joint property. It takes in only those males in his male line who are not removed from him by more than three degrees. Thus, while a son or grandson or great-grandson is a coparcener with the holder of the property, the great-great-grandson cannot be a coparcener with him, because he is removed by more than three degrees from the holder. The reason why coparcenership is so limited is to be found in the peculiar tenet of the Hindu religion that only male descendants upto three degrees can offer spiritual ministration to an ancestor. Rights of coparceners can be enlisted as follows: (1) Right by birth, (2) Right by survivorship, (3) Right to partition, (4) Right to joint possession and enjoyment (5) Right of alienation (6) Right to make self- acquisitions (7) Right to restrain unauthorised acts and (8) Right to accounts. The learned author N.R.Raghavachariar in “Hindu Law – Principles and Precedents”, 8th Edition, illustrates the concept of “right by birth” at page 230 as follows:
“Right by birth.-Every coparcener gets an
interest by birth in the coparcenary property. This
right by birth relates back to the date of
conception]. This, however, must not be held to
negative the position that coparcenary property
may itself come into existence after the birth of the
coparcener concerned. For instance where A
having a son B, and a grandson C, has a self-
acquired property, that property cannot be said to
be a property in which B and C have a right by
birth. But the moment A dies intestate, that
property descends to his son B and the grandson C
gets interest in it as coparcenary property even
though the character of coparcenary property
attached to it long after C’s birth.”
16. Another principle of inheritance under the pristine Hindu Law is that a son or a grandson, whose father is dead, and a great grandson, whose father and grandfather are both dead all succeed simultaneously as one heir. On a partition in the family consisting of other members, among the aforementioned persons, they take per stripes and not per capita. Further, an interest of a coparcener is a fluctuating interest, capable of being enlarged by deaths in the family and liable to be diminished by births in the family. So, whilst the joint family remains undivided, no coparcener can predicate his exact share in the family properties.
17. Indisputably, in this case Section 6 of the Act of 1956, as it stood before substitution in 2005, is the law applicable. It read as follows:
“Devolution of interest in coparcenary
property.-When a male Hindu dies after the
commencement of this Act, having at the time of his
death an interest in a Mitakshara coparcenary
property, his interest in the property shall devolve
by survivorship upon the surviving members of the
coparcenary and not in accordance with this Act:
Provided that, if the deceased had left
surviving him a female relative specified in Class I
of the Schedule or a male relative specified in that
class who claims through such female relative, the
interest of the deceased in the Mitakshara
coparcenary property shall devolve by testamentary
or intestate succession, as the case may be, under
this Act and not by survivorship.
Explanation 1.-For the purposes of this
section, the interest of a Hindu Mitakshara
coparcenar shall be deemed to be the share in the
property that would have been allotted to him if a
partition of the property had taken place
immediately before his death, irrespective of
whether he was entitled to claim partition or not.
Explanation 2.-Nothing contained in the
proviso to this section shall be construed as
enabling a person who has separated himself from
the coparcenary before the death of the deceased
or any of his heirs to claim on intestacy a share in
the interest referred to therein.”
The provision consisted of four paragraphs. First paragraph dealt with enunciation of the previous law regarding devolution by survivorship in a Hindu coparcenary. Second paragraph, in the form of a proviso, provided for the exemptions to the survivorship by devolution. It said that if the deceased had left surviving him a female relative specified in Class I of the Schedule or a male relative, specified in that Class who claimed through such female relative, the interest of the deceased in Mithakshara coparcenery property should devolve by testamentaty or intestate succession, as the case may be, under the Act and not by survivorship. In this context, relevance of Section 8 of the Act of 1956 comes to the fore. Third paragraph, by way of an explanation, provided that the interest of a coparcener for the purpose of devolution should be considered to be the share which would be allotted to him, if there was a partition immediately before his death. The last paragraph prevented a divided member from claiming the interest of a deceased coparcener on intestacy. In this context, it is relevant to note that substitution of this Section by the Hindu Succession (Amendment) Act, 2005 has no effect in the case on hand mainly for the reason that the Kerala Joint Hindu Family System (Abolition) Act, 1975 (in short, “Act of 1976”) has come into effect in the State on 01.12.1976, much before the death of Veluchami. The State Act of 1976 has made sea changes in the matter of rights in all forms of Hindu joint families, including Mithakshara coparcenary. By virtue of the provisions in the Act of 1976, a notional partition had taken place on the date of commencement of the Act and therefore, no joint family survived thereafter.
18. This development of law, exclusively prevailing in the State of Kerala, completely different from other parts of the country, gave rise to three situations in respect of the right to joint family properties. Firstly, a situation which existed prior to commencement of the Act of 1956 on 17.06.1956. Second situation related to a period after commencement of the Act of 1956, but before the Act of 1976 came into effect. The third situation arose after commencement of the Act of 1976, ie., on or after 01.12.1976. Before commencement of the Act of 1956, the rule of survivorship prevailed among coparceners in respect of ancestral properties. In otherwords, when a male Hindu died before commencement of the Act of 1956 and had he an interest in Mithakshara coparcenary property, then his interest in the property would have devolved by survivorship upon the surviving members in the coparcenary. This principle had been recognised in the previous Section 6 of the Act of 1956. So, there is no room for any doubt as to the rule of inheritance with respect to the coparcenary properties, prevailed before 17.06.1956.
19. After commencement of the Act of 1956, Section 6 of the Act made an inroad into the succession of a coparcener and the aforementioned state of affairs were put in place. The rule of survivorship, which applied earlier, had been deviated. If a deceased Hindu had a female relative in Class I of the Schedule or a male relative in that Class, who claimed through such a female relative, was available, then the interest of the deceased in the co-parcenery property devolved by testamentary or intestate succession, as the case may be, and not by survivorship. In such a situation, Section 8 of the Act of 1956, providing the general rules of succession in the case of males, would have been applied. It is evident from Section 4 of the Act of 1956 that the Act has overridden any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before its commencement.
20. The peculiar situation in the State of Kerala, brought out by the Act of 1976, is also relevant. By a legal fiction, all the Hindu joint families, existed in any form as mentioned therein, stood disrupted by the statutory provisions. Therefore, after the said Act, there is no question of any Hindu joint family continuing, so much so, there can be no question of anyone claiming a right by birth.
21. Now coming to the facts, as stated above, the parties are governed by Hindu Mithakshara Law as modified by custom. The recitals in Ext.A1 clearly indicate that the properties obtained by Veluchami in that partition were ancestral in nature. Admitted facts would show that the defendants 3 and 5 were born before commencement of the Act of 1956 and also much prior to Ext.A1. As the properties included in Ext.A1 were ancestral, the defendants 3 and 5 had acquired a right by birth although their rights were not recognized in Ext.A1. It is a definite proposition that a mere non-mentioning of the names of coparceners in a partition deed should not denude them of their rights. That also would not affect or alter the nature of property involved in the document. And the property still would remain as coparcenary property. In otherwords, a mere non- inclusion of certain coparceners in a partition deed will not make a coparcenary property a separate property of the executants. In this case, another contention is that Ext.B1 release deed, taken from the defendants 3 and 5 by Veluchami and his two wives, also probabilises the case of the appellants that deceased Veluchami himself had acknowledged the nature of property as one belonged to a coparcenary.
22. From the above discussion, it is clear that the Munsiff and the District Judge did not properly appreciate the marked distinction between the facts in Co-operative Bank’s case and this case. Both the courts failed to notice that the ratio in Co-operative Bank’s case was distinguishable on facts. The principle of law pronounced in a different set of facts was wrongly applied to this case. Hence, I have no hesitation to hold, in the facts and circumstances of this case, that the defendants 3 and 5 have acquired a right by birth in Ext.A1 property set apart to the name of Veluchami. Although the contesting respondents have disputed validity of Ext.B1, I find no merit in that contention. As the defendants 3 and 5 had acquired a right by birth in the property set apart to Veluchami as per Ext.A1 and in recognition of their rights Veluchami and others had purchased their right through Ext.B1, it cannot be gainsaid by the respondents that Ext.B1 should be eschewed from consideration. This contention of the respondents is devoid of any merit. In the light of the above findings, points (i) and (ii) are to be found in favour of the appellants.
23. Upshot of the discussions made above takes me to an irresistable conclusion that the ratio in Co-operative Bank’s case can be applied only to a situation where a person, who stakes a claim of right by birth in a property set apart to his father in a partition, has failed to plead and prove that the property devolved on his father was ancestral property, that he was born before division of the property and insofar as the scenario in this State is concerned, that he was born before 01.12.1976, the commencement date of the State Act of 1976. The law on the point is definite that a person could have claimed a right by birth only in respect of ancestral property in the hands of his father and the right claimable was only per stripes. In otherwords, no coparcener could have ever claimed a right by birth over the entire joint family properties on per capita basis.
24. The third point was decided by the courts below against the appellants. It was found that the 1st appellant (2nd defendant) is not the legally wedded wife of Veluchami. Learned counsel for the appellants contended that denial of her right is legally unjustifiable. Act of 1955 came into effect on 18.05.1955. Section 5(i) of the Act specifically states that a marriage may be solemnised between any two Hindus, if neither party has a spouse living at the time of marriage. Violation of this condition makes a marriage void by virtue of Section 11 of the said Act. It inter alia says that any marriage solemnised after commencement of the Act shall be null and void, if it contravenes Section 5(i) of the Act. Learned counsel for the appellants contended that going by the age of the parties, the 1st appellant must have been married to Veluchami much before commencement of the Act of 1955. The learned counsel for the contesting respondent opposed this submission. It is to be noticed that there is no averment in the pleadings indicating the date of marriage between Veluchami and 1st appellant. It is true, there is a presumption in favour of a marriage, if continued co-habitation between a man and a woman has been established.
25. Before commencement of the Act of 1955, there was no prohibition among Hindus following various caste systems, especially those who were governed by customary law, in having plurality of wives. In otherwords, polygamous marriages were recognized among many Hindu communities. However, this, being a question of fact, can be decided only on adducing sufficient evidence. While appreciating the evidence, the aforementioned presumption also can be considered. Both sides admit that this question was not properly addressed at the time of trial.
26. Learned counsel for the appellants contended that the lower appellate court did not consider I.A.No.1186 of 2007 in A.S.No.201 of 2004. Three documents were produced along with an application filed under Order XLI Rule 27 of the Code of Civil Procedure, 1908 (in short, “Code”). One is a Will said to have been executed on 18.01.1992 by the defendants 1 and 2 in favour of the 4th defendant. This document, being a Will, has to be proved under Section 68 of the Evidence Act. It assumes importance for the reason that pending suit the 1st defendant died and if this is a genuine Will, a part of it must have come into effect. However, that can be decided only on proving this document. Another one is an unregistered document styled as a mortgage deed. It is dated 03.10.1977. The recitals in this document would show that the 4th defendant’s husband Thankavelu advanced a sum of `19,500/- to Veluchami and others for discharging their liabilities. This document is legally inadmissible in evidence as it is in direct conflict with Section 17(1)(b) of the Indian Registration Act, 1908. This document cannot be regarded as a mortgage deed for want of registration and no right emanating from this document could be conceded to Thankavelu. Therefore, this document, at the most, could only be used for any purpose other than establishing a mortgage right in favour of Thankavelu. Another document is a registered power of attorney executed by the defendants 1 and 2 in favour of Thankavelu. It is not clear as to why it was produced. However the lower appellate court should have considered the acceptability of these documents under Order XLI Rule 27 of the Code. Failure to do so is a breach of duty on the part of the lower appellate court. The lower appellate court not even considered the need of these documents.
27. Learned counsel for the contesting respondents argued that Thankavelu’s right, which has been concluded, shall not be reopened. That submission is acceptable and therefore the findings of the courts below that Thankavelu has not acquired any right over the property is confirmed.
28. To sum up, the points (i) and (ii) are decided in favour of the appellants for the aforementioned reasons. However, on account of the glaring mistakes committed by the lower appellate court, a remand of the case has become inevitable. The Will produced along with I.A.No.1186 of 2007 should have been considered by the lower appellate court. The Will can only be proved by adducing evidence under Section 68 of the Evidence Act. Hence for certain limited purposes, the matter is remitted to the lower appellate court.
In the result, the appeal is allowed. I set aside the judgment and decree passed by the lower appellate court. The matter is remitted back to the lower appellate court for a fresh disposal on question No.(iii) and also for determining genuineness of the Will produced before it under Order XLI Rule 27 of the Code. The parties shall be afforded an opportunity to adduce evidence in support of their contentions. The appeal shall be disposed of within a period of six months from the date of production of a copy of this judgment. The parties shall appear before the lower appellate court on 21.11.2016.
All pending interlocutory applications will stand closed.
A. HARIPRASAD, JUDGE.