1. The plaintiff is the adoptive son of one Davegowda who had three younger brothers Halligowda, the natural father of the plaintiff, Annegowda and defendant 1 Karigowda. He died about 10 years before suit. Thereafter the plaintiff and his uncles were living together as member's of a joint Hindu family. The family is said to have owned moveable and immoveable properties described in the schedule to the plaint. Halligowda and Annegowda are said to have gone away from the joint family recently and had no right, title and interest in the suit properties. Defendant 1 had refused to give a share to the plaintiff and the suit has been brought for a declaration that the plaintiff was entitled to 2/5th share in the plaint schedule properties and for partition and possession of the same. Defendant 2 was later on added as a supplemental defendant and she is the adoptive mother of the plaintiff. She has joined the plaintiff in this appeal.
2. Defendant 1 pleaded that the plaintiff had been married at the family expense and over Rs. 2000/- had been spent for the same. Thereafter he wanted to take his share and trade and live independently. He, therefore, did not want a share in the immoveable properties and received Rs. 1500/- by way of cash and certain money bonds in March 1942 and went away from the family and thereby became completely divided. Subsequently, the plaintiff's natural father Halligowda and the other brother Annegowda had sold their shares to defendant 1 under registered deeds dated 29-6-1945. They had very shortly after set up the plaintiff to file a suit. The plaintiff was therefore not entitled to any share. The extent of the properties liable to division was also denied. Defendant 1 had also incurred debts amounting to Rs. 3000/- mainly for purchasing the snares of his brothers. Defendant 2 supported the plaintiff and also claimed a share.
3. The Subordinate Judge of Mandya, before whom the suit was filed, dismissed it. He held that the partition set up by defendant 1 in the year 1942 at which the plaintiff is said to have taken his share and gone out of the family was true. We have been taken through the entire evidence and we think that the judgment of the Court below cannot be supported.
4. The burden was heavy on defendant 1 to prove that there had been a partial partition in 1942 and that the plaintiff had taken his share and gone out of the family, the ordinary presumption under Hindu Law being that a Hindu family is joint. In his written statement defendant 1 merely stated that the partition between the plaintiff and the other members of the family was in March 1942. He gave no date of the same but in the' course of the evidence in this case Ex. IV, a note book, and certain loose sheets Exs. V, VI and VII therefrom are relied upon in proof of that partition. Exhibit IV is a small pocket note book. Three sheets are said to have been cut out of that note book. In Exs. V and VI, two of those loose sheets, names of some persons who are said to be debtors of the family are given with the amount due by each. Exhibit VII concludes that by documents Rs. 1415/- and by way of cash Rs. 85/-, in all Rs. 1500/-, has been taken by the plaintiff who is said to have signed in English below it. The entries are dated 23-3-42. This book was produced not at the time of the written statement nor even at the time when documents were to be produced to Court, but after D. W. 1 was examined on 24-8-1948, i.e. more than two years after the plaintiff's application to sue in forma pauperis was registered as a suit. It is represented that even in the course of the proceedings relating to pauperism the exact date of the separation was not mentioned. The learned Judge has nevertheless believed this document. And we are inclined to think that his view is clearly not correct.
5. If really the plaintiff had signed such a document it is impossible to believe that defendant 1 would not have taken it into his possession but would have allowed it to be taken by D. W. 2, the Patel. It is also most unlikely that after the suit was filed in forma pauperis defendant 1 would not have got the note book from defendant 2 and put it before Court at the earliest opportunity. (Alter discussing the evidence of the witnesses their Lordships continued:) We must say we are rather surprised that the learned Subordinate Judge should have so easily believed this document as genuine in spite of these suspicious circumstances and glaring improbabilities attending on its execution and late production into Court.
6-7. Without the support of that document on the side of the defendant I, oral evidence let in to prove the partial partition in 1942 is exceedingly thin. The bonds said to have been given to the plaintiff have not been admittedly endorsed over in his favour. They were pronotes it is said, and no other accounts relating to the debtors are produced. Exhibit XII is the deposition in the pauper miscellaneous case of one of the debtors who is now dead, and he says that no share was written on the pronote for Rs. 100/- he had executed and the pronote was returned to him and he has torn it off. Such evidence could easily be secured as neither the alleged debtor nor defendant 1 runs any risk of liability as the debt itself may be imaginary. It is not at all likely that these S debts which have been given to the share of the plaintiff were all collected in one lump within a day or two. It must have taken sometime and one would have expected the original documents with the share of discharge on them to be produced. Defendant 1 would have stopped payment if really the plaintiff had not executed a release deed within 15 days as promised. Defendant 1 also says that the exact amount due on the documents were not then calculated but only the probable amounts were mentioned in Ex. IV which again is improbable.
8. No provision was apparently made for the maintenance or share of the adoptive mother at that partition. The plaintiff was just 21 or 22 years of age at that time, and there is a suggestion that he immediately took up some drama contracts. Defendant 1's case is that he wanted to do business and therefore wanted cash. P. W. 2 as well as defendant 1 say that they were all on friendly terms at that time. The two brothers of defendant 1 were still undivided and it would be surprising if neither defendant 1 nor those two brothers nor the Patel thought of making some provision for defendant 2's share or at least for her maintenance but left her to the tender mercies of her young adoptive son who was launching on some fresh business. Defendant 1 was doing money-lending business and it could not be said that he was not versed in business affairs and he could be expected to have taken a formal document, of release or a sale of the plaintiff's rights which in fact he has done in the case of his two brothers.
9. It is strongly urged for defendant 1 that in Exs. II and III which are sale deeds executed in his favour by his brothers including the natural father of the plaintiff, a reference has been made to the separation of the plaintiff. But a reading of those documents discloses that those two brothers were apparently old and were not in a position or mood to fight defendant 1 and were willing to put in any recitals he pleased. They say that they could not look after any share of immoveable property and therefore wanted cash; they had no male issue while defendant 1 is said to have six sons who seem to be helping defendant 1 in the management of his family affairs. It appears as though defendant 1 was able to dictate to them as he docs not appear to have paid them in cash even according to the recitals in those documents and it is represented that he has made only part payments. If so it may be that the balance has not been paid on account of the plaintiff's suit but the fact remains that defendant 1 was and is in a much stronger position than those brothers. Defendant 1 could easily have examined his brothers in the light of the recitals made in those documents and they might have given valuable evidence about the partition. It is urged by Mr. Gopalaswamy Iyengar, learned counsel for the respondent, that it was the duty of the plaintiff to have done so; but in the light of the recitals in those documents that could not be expected of the plaintiff. We must, therefore, differ from the learned Subordinate Judge and hold that the plaintiff did not become divided from defendant 1 and the other members of the family in 1942 as pleaded by defendant 1 and that he is entitled to a share in the joint family properties.
10. The next question that falls for consideration is what is the share to which the plaintiff is entitled. Defendant 1 claims to have acquired their right, title and interest in all the family properties from his two other brothers under Exs. II and III. They are registered sale deeds dated 20-5-45 and 29-6-45 respectively, and for a consideration of Rs. 2000/- each the brothers have conveyed all their rights they had in his favour. It is not shown that they are nominal and sham documents and the plaintiff has admitted in the plaint that they have now no longer any interest in the family properties. It is contended here for him that the full amount of consideration has not been paid by defendant 1 to the executants, that only a part of it has been paid before the Sub-Registrar and that no receipt or other references have been produced by defendant 1 for having paid them the rest. They have not, however, been examined and there is no evidence or even a plea that they have not received the full consideration; nor do they appear to have taken any action to recover the balance from defendant 1. Even if any balance of consideration is still due to them that is a matter which cannot affect the legal effect of Exs. II and III in the matter of conveying away their title, it is also in evidence that defendant 1 has borrowed Rs. 3000/- from D. W. 6 and has executed Exs X and X-a, a pronote and consideration receipt dated 12-6-45 in his favour. D. W. 6 has deposed that the amount was borrowed by defendant 1 for the purpose of purchasing lands from his two elder brothers. It has not been shown by the plaintiff that this transaction is not a true one nor has the plaintiff been able to show how that fairly large sum of consideration for Exs. II and III was found by defendant 1 or that the same was contributed from the family chest or from the sale or mortgage of any family properties. Section 6(1) of the Hindu Law Women's Bights Act provides that property acquired by a member of a joint Hindu family without material and direct aid from property belonging to the Joint family shall be deemed to be the separate property of such members notwithstanding that at any time previous to or at the time of his acquiring the property such member may have been maintained or supported at the expense of the joint family. On the facts and circumstances of this case, there is no doubt that the plaintiff has entirely failed to show that the acquisitions under Exs. II and III were with the aid of any joint family property and it must be held that they are his self-acquisitions.
11. Mr. Lakshminaranappa, learned counsel for the appellant, has contended that no member of a joint Hindu family can acquire for himself by a purchase from any of his undivided coparceners any or all of their share in the joint family estate and that even if he purports to do so the same will enure to the benefit of all the other members of the family who may be remaining joint and undivided with him. It has been Held in --'Lakshumi Achi v. Narayanaswami Naicker', AIR 1930 Mad 51 (A) following-- 'Balkrishna Trimbak v Savitri Bai', 3 Bom 54 (B), that if one of the coparceners sells his share in some of the family properties, not to a stranger but to another coparcener, he becomes divided from the latter in respect of the said properties without any right of survivorship thereto, and at p. 53 it has been observed that if a member of an undivided family sells the whole of his share in some of the family properties or part of his share in such properties, but not in any other properties, it may be that he continues undivided with the other members in respect of the properties other than those in which the whole or part of his share has been transferred and that so far as the properties in which the whole or part of the member's share is sold or concerned, he must be regarded as divided from the other members. In -- '3 Bom 54 (B)', it has been held that the effect of a Hindu son relinquishing for a sum of money his share in the property of his father, natural or adoptive, and agreeing not to claim it during or alter his father's lifetime, is to place him in the position of a separated son. It is not contended for the appellant that according to the Hindu Law as in force in Mysore one of the coparceners cannot alienate for value his interest in any specific item of joint family property, or even in all his joint family properties, in favour of a stranger; and we have not been shown any authority that he cannot do so in favour of another member of the coparcenary. On the other hand, in --'Somu Achari v. Singara Achari', : AIR1945Mad407 , Somayya, J. has pointed out that there is nothing in the Hindu Law to prevent a member of a joint Hindu family from selling his share to another member. It may be that if he releases or relinquishes without consideration, or does so even for consideration, such rights under circumstances which would either expressly or by implication mean that he is doing so in favour of the joint family as a whole or if the consideration is found to have flowed from the family funds the benefit of such sale or release or relinquishment may enure to the benefit of the other members of the family excluding himself. But if as in the present case the conveyance is expressly in favour of one of the members of the family who has paid consideration for it under circumstances which would clearly make it his self-acquisition and he has purchased with the express intention of excluding any possible claims from the plaintiff, it is difficult to see how the other member of the family much less the plaintiff can also claim to benefit under that acquisition. It is not the plaintiff's case either that defendant 1 renounced or waives his rights in those purchases in favour of the family of himself and the plaintiff. A clear intention to waive such separate rights is required to be established and cannot be inferred even from acts which may have been done merely from kindness or affection or by mere physical mixing of the ancestral and self-acquired properties; see -- '50 Mys HCR 177 (D)'.
12. In this connection Mr. Lakshminaranappa has relied on a case reported in -- 'Venkatapathi Raju v. Venkatanarasimha Raju' . In that case it has been held that where a member of a Hindu joint family governed by the Mitakshara Law relinquished his interest in the family property, the renunciation merely extinguished the renouncing member's interest in the family estate but did not affect the status of the remaining members quad the family properties and they continued to be coparceners as before. The only effect of such renunciation was to reduce the number of persons to whom the shares would be allotted if and when a division of the status took place. A similar view has been expressed in -- 'Mahalingayya Easappayya v. Sangayya Chennayya' AIR 1943 Bom 397 (F), where it has been held that when out of two joint brothers one of them renounced his interest, the question whether the two brothers really intended to separate depends not merely on the act of format renunciation but from the intention as gathered from their conduct and that where a joint brother renounced his interest in the joint property, the person renouncing severs his connection with the family but such renunciation apart from extinguishing the interest of the renouncing member leaves the coparcenary itself intact. In -- 'Subbanna v. Balasubba Reddi' AIR 1945 Mad 142 (FB) (G), also, relying on -- ' ' and -- 'Anandrao v. Wasantrao', 9 Bom LR 595 (PC) (H), it has been laid down that a member of a joint Hindu family cannot give his interest in the family estate to one of the several coparceners if they remain joint in estate. In such circumstances, he can relinquish his interest but the relinquishment operates for the benefit of all other members. The decision in -- 'Chinnathayi v. Kulasakarapandia Naicker', AIR 194S Mad 353 (I) is to the same effect.
13. Mr. Lakshminaranappa has also tried to make a distinction between the case where there are only two coparceners and one of them makes an effective alienation in favour of another and the case where there are more than one coparcener, and has referred to -- ' : AIR1945Mad407 ' in this connection. The decisions in -- '', -- 'AIR 1948 Mad 142 (G)' and -- 'AIR 1943 Born 397 (F)' are all cases of renunciations or gifts and not sales or releases for consideration. It is contended for the appellant that all alienations including gifts and renunciations must be treated alike and as there can be no gift or renunciation by one coparcener in favour of another there cannot also be such a sale for consideration. It is too late in the day to contend that at least in Mysore, Madras and Bombay where alienations by a coparcener for consideration have been upheld, that such alienations for value stand on the same footing as gifts or bequests. 'AIR 1945 Mad 407 (C)', which has been referred to for the appellant, happens to be a case where there were only two coparceners and does not lay down any general rule that different considerations would apply if there were more than one coparcener; and it expressly recognises the right of a coparcener to buy a share of another and that, by a deed, which though it was termed a 'release', was for consideration and was held really to amount to a sale. The decision in -- 'AIR 1943 Bom 397 (F)' only means that a sole surviving coparcener in a joint Hindu family, in whose favour another brother had renounced his interest, would still be subject to certain rights and liabilities by virtue of his having been a member of such coparcenary. He has also urged that an alienation by a coparcener does not terminate the coparcenary where the property alienated is either the whole or only a part of his interest in the family property and that notwithstanding the alienation the alienor continues to be undivided with the other members of the family, with rights of survivorship between him and the other members of the family in respect of other properties of the family, has been laid down by Bhashyam Iyengar, J. so far back as in -- 'Aiyyagari Venkataramayya v. Aiyyagari Ramayya', 25 Mad 690 (FB) at p. 717 (J), and still continues to be good law. See also -- 'Perama-nayyakam Pillai v. Sivaraman', : AIR1952Mad419 (FB) (K). That, however, does not solve the point now to be decided.
14. Mr. Lakshminaranappa represents that if a member of a joint Hindu family is enabled to sell his share to another member, either in a particular property or in ail the joint family properties and such a purchaser can claim a larger share than the others by virtue of that sale, it will lead to confusion and difficulty in the matter of common enjoyment of the properties of the family as well as while allotting shares at the time of any future partition. As regards the first point, if a member of the coparcenary purchases the rights of another coparcener and the right he has purchased is to be treated as his self-acquisition as pointed out in -- 'AIR 1930 Mad 51 (A)', it is difficult to see how such a position is very much different from the ordinary case of a coparcener being allowed to have and possess and enjoy separate self-acquired property while still being a member of the joint family and having a common interest and enjoyment in other joint property. The mode in which such property will be enjoyed is a matter for the members of the joint family. It may even be open to the member who has acquired the share of the coparcener to later on waive his interest in it and bring into the family hotchpot; but so long as there is no prohibition against a member of a joint Hindu family owning separate property it, is difficult to see any force in this argument. The right which every member has to separate himself even by a mere declaration and ask for his own share by a partition is always open to him as a solution for any grievance he may feel in the matter of enjoyment of the properties.
15. As regards any difficulty which may be met at the time of partition in allotting shares such situations are not unknown to Hindu Law. 'Sada-shiva Rao v. Subba Rao', 10 Mys LJ 49 (FB) (L) is a case in point. There, in a Mitakshara joint Hindu family comprising several branches, a member of one branch alone had separated himself from the coparcenary taking away his share at a partition effected for the purpose. The other members continued to live in jointness as before. At a subsequent partition, among all the branches, it was held that deduction should be given to the share withdrawn by one member in the earlier partition in the share to be allotted to his branch, -- 'Manjanatha v. Narayana', 5 Mad 362 (M) and -- 'Narayana Sah v. Sankar Sah', AIR 1929 Mad 865 (N) being followed and -- 'Pranjivandas Shivjai v. Ichharam Vijbhukhandas', AIR 1915 Bonn 255 (O) being dissented from. It was observed that the rule that partition should be made 'rebus sic standibus' as on the date of subsequent partition had no application to cases of partial partition among the branches. That was a case converse to the present as it dealt not with the enlargement of the share of one branch but its depletion by a share being carved out at an earlier partial partition. Rama Rao, J. in his order of reference to the Full Bench pointed out the difficulty now envisaged for the appellant. At page 55 he observed:
'If the Madras rule should be accepted, it may be argued that an account will have to be maintained as to the persons who divided and the properties available and actually allotted at each succession for guidance in future partitions, which is obviously not in consonance with the general rule of Hindu Law of equality of shares per stirpes at the time when the coparceners seek a division. If on account of the particular motives or attitude of one or more members of a particular branch who desire to withdraw, there is room to apprehend prejudice to the interest of the other branches, relief is always open to claim a partition among all the members..........'
These difficulties did not appeal to the Full Bench in -- 10 Mys LJ 49 (L)', which chose to follow -- 'AIR 1929 Mad 865 (FB) (N)'. That latter case affirmed an earlier decision of the same Court in -- '5 Mad 362 (M)'. It was then urged that the case in -- '5 Mad 362 (M)' had been wrongly decided because it went counter to the principle of Hindu Law, that no member or branch of an undivided family could be said to have a definite share until a partition was actually effected, a principle laid down in -- 'Apoovier v. Ramasubba Aiyar', 11 Moo Ind App 75 at p. 79 (PC) (P); and that even as regards equality, it could not be secured by taking a previous division into account and that it was impracticable in execution. These objections did not find favour with the Full Bench of the Madras High Court. It was observed by Coutts-Trotter C. J. that partial partitions themselves were not recognized in Hindu Law texts, and that once partial partition had been permitted, it was necessary on considerations of equity, that the branch concerned, one of whose members had taken away his share at such partial partition should be compelled to bring into account that portion of the family property which had gone- to their share, or that the branch should be debited that fractional share that had been so taken away, at the ultimate reckoning. Wallace J. also observed that equity demands that the alienor should make good to the joint family so far as he can the sacrifice he has made it suffer; hence the system of accounting and debiting against the coparcener had a sound foundation in equity and the principle was not different for a branch; that in such case 'a mental though not a real ledger is maintained against the appropriating coparcener or branch even while the joint family remains joint.' He therefore saw no difficulty in applying a rule of equity in the matter of such allotting of shares among the branches as he thought that any other principle would in the circumstances result in inequitable division unfair to the branches which had remained whole in the joint family. Ananthakrishna Iyer, J. observes at p. 880 that what the fractional share to which any branch would be entitled is, would depend on the circumstances that exist at the time of the partition. In the present case the plaintiff belongs to one branch while defendant 1 and his sons belong to another branch. The plaintiff has claimed division per stirpes as between the two branches. If as a result of prior partition one of the branches could be treated differently from the other while allotting shares, it is not easy to see why on the same equitable principle the branch or the member of the branch which has acquired the shares of the other branches should not be given the benefit of such accretion particularly when it is found, as in this case, that the acquisition was made for the purpose and with the clear and unequivocal intention of holding the same separately and as property in which the plaintiff's branch should not share.
16. There can be no objection in principle why a particular item of property should not be sold by all or some of the other coparceners in favour of one of them if they can do so to a stranger. The family owning a number of items of immoveable property may find it necessary to raise money by the sale of one of the items and we do not see why one of the members of the family who is in more affluent circumstances should not be able to buy the items for himself and make it his own self-acquisition. It may often times be much more advantageous to do so than to sell it to a stranger. To hold otherwise would be going contrary to the right of every member of the family to own and possess self-acquired property. To permit a stranger who may immediately sue for partition and possession and thereby disrupt the family compulsorily, to purchase the rights or share of a coparcener in one or more items of the properties of the joint family, appears to be more risky and less advantageous to the family than being able to sell the same to one of the coparceners and would not expose the family to loss or depreciation in value of the joint family property.
17. The circumstances under which the sales under Exs. II and III in favour of defendant 1 have been effected clearly show that the intention of defendant 1 was to acquire those shares for himself and not for and on behalf of the family. We have already found that those rights he has purchased must be treated as his self-acquisitions. The result is that the plaintiff would be able to recover only one-fourth hi the joint family properties and not 2/5ths as he has claimed. Out of this l/4th defendant 2 would be entitled to her share which will be l/4th of the same under Section 8, Clause 2(a) of the Hindu Law Woman's Bights Act; (see S.A. No. 443/51-52 recently decided by one of us).
18. The Court below has not considered the other points raised by defendant 1 regarding the nature and extent of properties liable to division and these will now have to be determined by the lower Court.
19. In the result we allow this appeal, set aside the judgment and decree of the Subordinate Judge. There will be a preliminary decree in favour of the plaintiff declaring that he is entitled to 3/16th share in the joint family properties, defendant 2 being entitled to l/16th share in the same. As regards costs, as neither party has succeeded in full we think the parties may bear their own costs both here and in the Court below and we order accordingly. The Institution-fee due to Government will be payable by the plaintiff and will be recovered from his share.
20. Order accordingly.