Thimmaiah
& Ors Vs. Ningamma & ANR [2000] INSC 446 (25 August 2000)
A.P.Misra,
Ruma Pal
RUMA
PAL, J.
The
issue to be decided in this appeal is the share of each of the parties in
coparcenary properties. Hiri Thimmaiah (referred to briefly as Hiri) was the
Karta of the coparcenary. He had two wives Sidamma and Ningamma.
The
appellants are the children of Hiris first wife, Sidamma. The respondent No. 1
is the second wife and the respondent No. 2 is her daughter. Hiri died in 1971.
Soon after his death, in 1972, the appellant No. 1 filed a suit for partition
by metes and bounds of 12 properties described in the Schedule to the plaint
and for separate possession of 7/12th share in such properties. The case in the
plaint was that items 1 and 2 of the schedule properties were ancestral and all
the remaining properties belonged to the coparcenery. The further case in the
plaint was that Hiri had illegally sought to gift away item No. 1 and 2 by deed
dated 17.11.67 to the respondent No. 1 and items 3 to 6 by deed dated 9.6.71 to
the respondent No. 2. The appellant No. 1 claimed a declaration that the gifts
were void. The appellants 2, 3 and 4 were named as defendants 3, 4 and 5 in the
suit. They filed a written statement substantially supporting the case of the
appellant No. 1 and claiming 1/4th share in all the 12 properties. In their
written statement, the respondents (who were the defendants 1 and 2 in the
suit) conceded that items 1 and 2 were ancestral properties but claimed that
items 3 to 6 were the self- acquired properties of Hiri. They claimed that both
the deeds were settlement deeds. The first settlement deed dated 17.11.67 made
provision for the maintenance of respondent No. 1 out of items 1 and 2 and
after her death, the properties were to revert back to Hiri. By the second deed
dated 9.6.71, items 3 to 6 had been settled on the second respondent with the
consent of appellant No. 1 who had not only put his left thumb impression on
the deed but had also signed the document as a consenting party. Issues were
framed on the basis of the pleadings. Witnesses were examined in support of the
contesting parties. The Trial Court negatived the claim put forward by the
respondents that the two deeds were deeds of settlement. It was held that items
3 to 6 were not the self-acquired properties of Hiri but belonged to the
coparcenary and that the two deeds were deeds of gift and were void. In coming
to this conclusion, the Trial Court noted the contention of the appellant No. 1
that fraud had been committed on him and that he had not fixed his left thumb
impression by way of his consent to the document dated 9.6.71 and said: It has
to be noted that there is material in the evidence of D.W- 2 the uncle of the
plaintiff, to show that on the very same day of the execution of the document
in question, the father of the plaintiff executed another document in favour of
his brother D.W-2 as per Ex.P- 24 and in the course of obtaining consent of the
plaintiff to that document, Ex.P-24, the signature of the plaintiff is by
deceitful means obtained on Ex.D-2 also.
However,
the Trial Judge did not hold that the deeds were void only because of the lack
of the consent of appellant No. 1. Relying on the decision of this Court in
Ammathayee alias Perumalakkal and Anr. V. Kumaresan alias Balakrishnan and
Others AIR 1967 SC 569 the Trial Judge held that Hiri was incompetent to gift
items 3 to 6 to the respondent No. 2 irrespective of the consent of the
appellant No. 1. According to the Trial Judge immovable ancestral properties
could only be gifted within reasonable limits for pious purposes such as the
marriage of an unmarried daughter. The Trial Court found that a considerable
portion of the coparcenary properties had been gifted by Hiri to the respondent
No. 2 and that it could not be said that the gift had been made in favour of
the second respondent in fulfillment of any pious purpose as she was well below
the marriageable age when the gift was made.
The
appellant No. 1s suit was accordingly decreed on 8th August 1977 as prayed for by the respondent No. 1 and a preliminary
decree for partition was passed. The respondents preferred an appeal before the
District Judge.
The
first appellate Court dismissed the appeal and upheld the findings of the trial
Court that the properties were coparcenery and could not have been affected by
the two impugned deeds executed by Hiri in favour of the respondents. On the
question of consent, the District Judge said: Plaintiff has taken the stand
that his L.T.M. is taken to Ex.D-1 at Ex.D.1 (e) by practising fraud on him
when he had gone to the Sub-Registrars Office at the time of execution of
another document by his father regarding sale of a site. Even if it can be held
on the basis of the evidence of D.Ws. 1 and 2 that plaintiff has attested
Ex.D-1 by putting his L.T.M. at Ex.D-1 (e), I find it difficult to uphold the
validity of Ex.D-1 as there is no recital in the body writing of Ex.D-1 that
the properties were gifted by H. Thimmaiah in favour of the 2nd defendant with
the specific consent of the plaintiff. Therefore, the mere attestation of
Ex.D-1 by the plaintiff by putting his L.T.M. would not validate the gift of
considerable portion of family properties made under Ex.D-1.
A
second appeal was preferred by the respondents before the High Court. There it
was urged by the respondents for the first time that by virtue of the Mysore
Hindu Law Womens Rights Act, 1993 (hereafter referred to as the Mysore Act),
the respondent No. 1 was entitled to a widows share and the respondent No. 2 to
an unmarried daughters share in addition to their rights on intestacy as heirs
of Hiri under the Hindu Succession
Act, 1956 as well as under the two deeds dated 17.11.67 and 9.6.71. The
High Court held that the respondent No.2 was entitled to 1/9th share in the
coparcenary property under Section 8 of the Mysore Act but negatived the claim
of the respondent No. 1 not only under the Mysore Act but also under the deed
dated 17.11.67. As far as the deed dated 9.6.71 was concerned, it was held by
the High Court that items 3 to 6 had been
gifted to the respondent No. 2 with the consent of the appellant No. 1 and was,
therefore, valid. The High Court held that the conclusion arrived at by the
Trial Court and the first appellate Court that the appellant No. 1 had not
consented to the gift, was not based on any acceptable evidence.
According
to the High Court, items 3 to 6 were, therefore, not available for partition
and the parties entitlement in the remaining properties were: Appellant No. 1
4/9+4/54 = 28/54 (son) Appellant No. 2 = 4/54 (married daughter) Appellant No.
3 = 4/54 (married daughter) Appellant No. 4 = 4/54 (married daughter)
Respondent No. 1 = 4/54 (widow) Respondent No. 2 (unmarried daughter) 1/9+4/54
= 10/54 The judgment delivered on 1st August 1991 by the learned Single Judge
of the High Court has been impugned before this Court on the ground that the
High Court on second appeal should not have interfered with concurrent findings
of fact on the appellants lack of consent and should not have applied the
provisions of the Mysore Act which, according to the appellants, had been
excluded by the provisions of Section 4 of the Hindu Succession Act,
1956.
The
respondents have relied upon the decision of this Court in Ladli Parshad
Jaiswal V. The Karnal Distillery Co., Ltd.
Karnal
and Others AIR 1963 SC 1279 to contend that the High Court was competent to
reverse the finding of the lower Courts that there was no consent of the
appellant No. 1, because the finding was based on no evidence. It is also
contended that the provisions of the Mysore Act are ancillary to the provisions
of the Hindu
Succession Act, 1956 and
particularly Sections 6 and 8 of that Act. In Jaiswals case (supra), this Court
has, no doubt, held that:
A
decision of the first appellate Court reached after placing the onus wrongfully
or based on no evidence, or where there has been substantial error or defect in
the procedure, producing error or defect in the decision of the case on the
merits, is not conclusive and a second appeal lies to the High Court against
that decision.
But at
the same time, this Court has noted that the High Court has no jurisdiction to
entertain a second appeal on the ground of an erroneous finding of fact however
gross or inexcusable the error may seem to be. In other words, if there is some
evidence and the appreciation of the evidence is erroneous, a second appeal
will not lie.
Further
the decision in Jaiswals case was rendered prior to the amendment of Section
100 by which the provisions of second appeal are more stringent and have been
strictly limited to those cases where a substantial question of law arises and
in no others. We have already noted the findings of the Trial Court as well as
the first appellate Court on the question of consent. These observations clearly
show that there was some evidence in support of the finding of the lower
Courts. In the circumstances, the High Court was not entitled to reassess the
evidence and arrive at a different conclusion. Besides the onus was on the
respondents to prove the fact of the appellant No. 1s consent. When items 3 to
6 were being claimed by the respondents to be the self-acquired property of
Hiri, it could hardly be contended in the same breath that the appellant No. 1
had consented to the gift of items 3 to 6 on the basis that it was coparcenary
property and the appellant No. 1 the only other coparcener. The High Court also
erred in its view on the effect of consent on a gift which may otherwise be
void. This Court in Ammathayee alias Perumalakkal and Another V. Kumaresan
alias Balakrishnan and Others AIR 1967 SC 569 summarised the Hindu Law on the
question of gifts of ancestral properties in the following words: Hindu law on
the question of gifts of ancestral property is well settled. So far as moveable
ancestral property is concerned, a gift out of affection may be made to a wife,
to a daughter and even to a son, provided the gift is within reasonable limits.
A gift for example of the whole or almost the whole of the ancestral moveable
property cannot be upheld as a gift through affection. (See Mullas Hindu Law,
13th Edn., p.252, para 225). But so far as immovable ancestral property is
concerned, the power of gift is much more circumscribed than in the case of
moveable ancestral property. A Hindu father or any other managing member has
power to make a gift of ancestral immovable property within reasonable limits
for pious purposes;
(see
Mullas Hindu Law, 13th Edn., para 226, p. 252). Now what is generally
understood by pious purposes is gift for charitable and/or religious purposes.
But this Court has extended the meaning of pious purposes to cases where a
Hindu father makes a gift within reasonable limits of immovable ancestral
property to his daughter in fulfilment of an antenuptial promise made on the
occasion of the settlement of the terms of her marriage, and the same can also
be done by the mother in case the father is dead.( See Kamala Devi v. Bachu Lal
Gupta, 1957 SCR (AIR 1957 SC 434).
The
Karta is competent or has the power to dispose of coparcenary property only if
(a) the disposition is of a reasonable portion of the coparcenary property and
(b) the disposition is for a recognised pious purpose. The High Court has not
come to any conclusion as to whether the gift of items 3 to 6 by Hiri to the
respondent No. 2 was within reasonable limits or in fulfilment of an
antenuptial promise made on the occasion of the settlement of the terms of the
respondent No.2s marriage. It must be taken, therefore, that the findings of
the lower Courts on both counts were accepted. That being so, Hiri could not
have donated items 3 to 6 to respondent No. 2 and the deed of gift dated 9.6.71
was impermissible under Hindu Law. The question is - could such an alienation
be made with the consent of the appellant No. 1? It is arguable that there is a
distinction between a void disposition and a voidable one, and that the gift in
favour of the respondent No. 2 being void cannot be made even with the consent
of the appellant No.1. However, it is not necessary to decide the issue in the
view that we have taken in this case. This Court in Guramma V. Mallappa AIR
1964 SC 510 has envisaged three situations of voidable transactions. It was
held that a managing member may alienate joint family property in three
situations namely: (i) legal necessity, or (ii) benefit of the estate or (iii)
with the consent of all the coparceners of the family. Where the alienation is
not with the consent of all the coparceners, it is voidable at the instance of
the coparcener whose consent has not been obtained.
Needless
to say where there is only a sole surviving coparcener and no other member of
the family who has a joint interest in the property, there are no fetters on
the alienation of the property. Assuming that the principle enunciated in
Guramma V. Mallappa (supra) would apply to void alienations of joint family
property, the question of consent of all interested parties would still remain.
The rationale behind the impermissibility of certain dispositions of
coparcenary properties is the protection of the interest of other coparceners.
Where other persons have an interest in coparcenary property, whether inchoate
or otherwise, and willingly acquiesce in the depletion of such interest for
whatever purpose, such a disposition would be permissible. In this case, apart from
the appellant No. 1, if the other heirs of Hiri had such an interest, merely
getting the consent of the appellant No. 1 would not do.
The
impugned deed was executed in 1971, prior to Hiris death in the same year. By
this time, the Hindu
Succession Act,
1956 had come into force. The proviso to section 6 of the 1956 Act (
considered at greater length later in the judgment) now provides that the
deceaseds interest in Mitakshara coparcenary property does not devolve by
survivorship if the deceased leaves surviving him female relatives specified in
class I of the Schedule.
Consequently,
the interest of the surviving coparcener to the deceaseds coparcenary share, in
such a case, no longer survives and his consent to depletion of his interest in
joint family property would not, therefore, make a gift of coparcenary property
otherwise invalid, valid. Consent in such a case would have to be obtained from
all the persons who could claim a share in the deceased coparceners interest.
The appellants 2, 3 and 4 as well as both the respondents are class I heirs of
Hiri. It is not the case of the respondents that the appellants 2, 3 and 4 had
consented to the gift. We are, therefore, of the opinion that the finding of
the High Court on the validity of the deed of gift dated 9.6.71 is
unsustainable and it is accordingly set aside. The next question is the
applicability of Section 8 (1) (d) of the Mysore Act. It may be stated at the
outset that while we affirm the conclusions reached as to the shares of the
parties, it appears to us that the High Court has misconstrued the provisions
of Section 8 (1) (d). Section 8 reads:
8.
Certain females entitled to shares at partition.
(1)
(a) At a partition of joint family property between a person and his son or
sons, his mother, his unmarried daughters and the widows and unmarried
daughters of his predeceased undivided sons and brothers who have left no male
issue shall be entitled to share with him.
(b) At
a partition of joint family property among brothers, their mother, their
unmarried sisters and the widows and unmarried daughters of their predeceased
undivided brothers who have left no male issue shall be entitled to share with
them.
(c)Sub-sections
(a) and (b) shall also apply mutatis mutandis to a partition among other
coparceners in a joint family.
(d)
Where joint family property passes to a single coparcener by survivorship, it
shall so pass subject to the right to shares of the classes of females
enumerated in the above sub-sections.
(2)
Such share shall be fixed as follows: - (a) in the case of the widow, one-half
of what her husband, if he were alive, would receive as his share;
(b) in
the case of the mother, one-half of the share of a son if she has a son alive,
and, in any other case, one- half of what her husband if he were alive, would
receive as his share;
(c) in
the case of every unmarried daughter or sister, one-fourth of the share of a
brother if she has a brother alive, and, in any other case, one-fourth of what
her father, if he were alive, would receive as his share:
provided
that the share to which a daughter or sister is entitled under this section
shall be inclusive of, and not in addition to, the legitimate expenses of her
marriage including a reasonable dowry or marriage portion.
(3) In
this section, the term widow includes, where there are more widows than one of
the same person all of them jointly, and the term mother includes a step-
mother and, where there are both a mother and a step- mother, all of them
jointly and the term son includes a step-son as also a grandson and a great
grandson; and the provisions of this section relating to the mother shall be
applicable mutatis mutandis to the paternal grandmother and great grandmother.
(4)
Fractional shares of the females as fixed above shall relate to the share of
the husband, son, father or brother as the case may be and their value shall be
ascertained by treating one share as allotted to the male and assigning
therefrom the proper fractional shares to the female relatives.
5.
Each of the female relatives referred to in sub- section (1) shall be entitled
to have her share separated off and placed in her possession.
Provisos:
- Provided always as follows: - (i) No female relative shall be entitled to a
share in property acquired by a person and referred to in Section 6, so long as
he is alive;
(ii)
No female whose husband or father is alive shall be entitled to demand a
partition as against such husband or father, as the case may be;
(iii)
A female entitled to a share in any property in one capacity of relationship
shall not be entitled to claim a further or additional share in the same
property in any other capacity.
Illustration:
A and his son B effect a partition of their family property. A has a mother and
two unmarried daughters. Their shares will be as follows: - Father .. .. 1 Son
.. .. 1 Mother .. .. ½ Two daughters .. .. ¼ each The property will be divided
in the above proportion, the father getting 1/3, the son 1/3, the mother 1/6
and each daughter 1/12.
Clauses
(a), (b), (c) and (d) of sub-section (1) of Section 8 deal with four separate
situations. Clause (a) deals with a partition of joint family between a person
and his sons. Clause (b) deals with the partition of joint family property
among brothers, clause (c) applies to a partition among other coparceners in a
joint family. Clause (d) provides for a situation where joint family property
passes to a single coparcener by survivorship. The female members who have been
declared to be entitled to shares are the mother of the concerned coparcener,
his unmarried daughters and widows and unmarried daughters of pre-deceased sons
and undivided brothers. At this stage, it would be appropriate to refer in
detail to relevant portions of Section 6 of the 1956 Act: 6. 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 him surviving 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 interestate 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
coparcener 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 x x x x x x x x (Emphasis supplied) It is not in dispute that the Mysore Act
deals with Hindu Mitakshara coparcenary rights. This is also clear from the
definition of Hindu in section 3 (c) of the Mysore Act. Section 4 of the 1956
Act gives overriding effect to the 1956 Act in so far as any law governing
Hindus is inconsistent with the provisions of the 1956 Act.
Reading
the proviso to section 6 of the 1956 Act with section 8 of the Mysore Act, it
is clear that where the female members sought to be protected under Section 8
of the Mysore Act are in fact Class I heirs of a deceased coparcener, his
interest in the joint family property cannot pass by survivorship at all. Thus
the question of it passing subject to the rights of any class of females under
Section 8 (1) (d) of the Mysore Act does not also arise.
This
would mean that Section 8 (1) (d) of the Mysore Act has been superseded by the
proviso to Section 6 of the 1956 Act to the extent stated. The decision in
Gurupad Khandappa 671 is an authority for the proposition that where a female
is entitled to a share in coparcenary property on partition, then by virtue of
Explanation I to Section 6 of 1956 Act, she continues to be so entitled despite
the fact that no partition may actually have taken place prior to the
coparceners death. This Court held that Explanation I to Section 6 covered a
situation where a Hindu coparcener dies without actual partition having taken
place. In such event, the Court will have to assume that a partition had in
fact taken place immediately prior to the death of the coparcener concerned and
grant shares on the basis of such notional partition. This Court also held that
the share of the female member on such partition was in addition to any share
which she may get as an heir of the deceased coparcener.
[See
also State of Maharashtra
V. Narayan Rao 1985
(3) SCR 358; AIR (1985) SC 716, 721]. Reliance by the respondents on the
decision of this Court in Gurupad Khandappa Magdum V.
Hirabai
Khandappa Magdum and Ors. 1978 (3) SCR 671 to contend that the respondents were
entitled to shares in the coparcenary property by virtue of Section 8 (1) (d)
of the Mysore Act is misplaced because as already noted Section 8 (1) (d) in
terms does not apply in the facts of this case because of the proviso to
Section 6 of the 1956 Act. Under Explanation I to Section 6 of the 1956 Act ,
the Court will have to ascertain what the shares of the parties would be as if
Hiri had sought for partition just before his death. The only other coparcener
being the appellant No.1, the partition would have to be effected according to
Section 8 (1) (a) which provides for partition between a coparcener and his son/sons.
Under Section 8 (1) (a) the female members who could claim a share in the
coparcenary properties would be Hiris mother, his unmarried daughter ( the
respondent no.2) and the widow or unmarried daughters of any predeceased sons
or brother. Admittedly, Hiris mother was not alive in 1971. Nor had Hiri any
predeceased son or brother. The sole female member entitled to a share under
Section 8 (1) (a) therefore is the respondent No.2. The appellant being the
other coparcenar would get ½ of the coparcenary properties on partition. In
terms of Section 8 (2) (c) of the Mysore Act, his sister, the respondent no.2
would get ½ her brothers share, namely 1/4th of the coparcenary properties. The
remaining interest would belong to Hiri. It has not been disputed before us
that under Section 8 of the 1956 Act, each of the parties to this appeal is
entitled to claim a share in Hiris interest as his Class I heir. On the basis
of the ratio in Gurupad Khandappa Magdums case (supra) , the respondent No.2
would also be entitled to a share in Hiris interest as an heir on intestacy,
under Section 8 of the 1956 Act. To sum up: if there were an actual partition
of the coparcenary properties between Hiri and his son, under Section 8 (1) (a)
of the Mysore Act, his son, the appellant No. 1 would get ½ share.
His
wife, namely the respondent No. 1, and the appellants 2, 3 and 4 would not get
any share in the coparcenary property at all. But the respondent No. 2 as the
unmarried daughter would get a share calculated in terms of Section 8 (2) (c)
of the Mysore Act, namely, 1/4th of the share of her brother, namely, the
appellant No. 1 in addition to her share as the heir of Hiri. All the
appellants as well as both the respondents are each entitled to an equal share
in Hiris interest as heirs on intestacy. The High Court has, therefore,
correctly calculated the shares of the parties and we affirm its conclusion in
this regard. The appeal is accordingly partly allowed. We hold that items 3 to
6 of the Schedule to the plaint are available for partition as coparcenary
property according to the shares declared by the High Court. There will be no
order as to costs.
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