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S. Melagiriyappa and ors. Vs. Lalithamma - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKarnataka High Court
Decided On
Case NumberRegular Appeal No. 2 of 1956
Judge
Reported inAIR1961Kant152; AIR1961Mys152
ActsHindu Law; (Mysore) Hindu Law Women's Rights Act, 1933 - Sections 2(2), 8, 8(1), 8(5), 9, 10, 10(1), 10(2), 22, 22(3) and 26; Hindu Law Women's Rights (Amendment) Act, 1937
AppellantS. Melagiriyappa and ors.
RespondentLalithamma
Appellant AdvocateS. Gundappa and ;B.V. Balaji, Advs.
Respondent AdvocateK.R. Subbanachar and ;P.R. Srirangaiah, Advs.
Excerpt:
- family courts act,1984[c.a.no.66/1984] -- section 19(4): [n.k. patil, j] revision petition prayer for enhancement of maintenance non-consideration of the salary certificate issued by the college produced by the revision petitioner which discloses total gross salary of the respondent at rs.12,000/- p.m. family court awarded rs.1,500/- for wife and rs.500/- for the daughter - failure of the family court to consider the necessities of the minor daughter expenses towards cost of food, clothing, education, providing conducive atmosphere for the study of minor held, it is the duty of the family court to take pragmatic approach, having regard to the status of the parties and the cost of living in the society. impugned judgment passed by the family court was set aside. award of maintenance.....1. this is an appeal by the four defendants in original suit no. 11 of 1953 on the file of the court of the district judge of bangalore, directed against the decree passed therein for partition of family properties. the plaintiff lalithamma filed the suit claiming her share to which she was entitled under clause (d) of sub-section (1) of section 8 of the hindu law women's 'rights act, mysore act x of 1933. the plaintiffs husband hanumiah and the 1st defendant malugiriappa are sons of one settappa.they had another brother called arasappa. the three brothers were living together as members of a joint hindu family governed by mitakshara law. arasappa took his share and left the family on the 28th match, 1938, on which date he executed what is described in the evidence as a release deed, ex......
Judgment:

1. This is an appeal by the four defendants in Original Suit No. 11 of 1953 on the file of the Court of the District Judge of Bangalore, directed against the decree passed therein for partition of family properties. The plaintiff Lalithamma filed the suit claiming her share to which she was entitled under Clause (d) of Sub-section (1) of section 8 of the Hindu Law Women's 'Rights Act, Mysore Act X of 1933. The plaintiffs husband Hanumiah and the 1st defendant Malugiriappa are sons of one Settappa.

They had another brother called Arasappa. The three brothers were living together as members of a joint Hindu family governed By Mitakshara Law. Arasappa took his share and left the family on the 28th Match, 1938, on which date he executed what is described in the evidence as a release deed, Ex. P-l; he appears to have taken a house and certain minor items as and for his share. Thereafter the two brothers Hanumiah and Melugiriappa continued undivided,

Hanumiah died issueless in September, 1943. The result was that the joint family property passed to Melugiriappa as sole surviving coparcener subject to the right to share therein of Lalithamma, the plaintiff. In the plaint, the plaintiff asks for partition and delivery to her of a l/4th share in the properties set out in schedules A and C attached to the plaint. 'C' schedule merely states 'family moveables list separately attached.' No such list was at all attached.

No evidence as to existence of family moveables was let in. The plaintiff's claim thereto was therefore rejected. This finding is not questioned. In schedule 'B' to the plaint, the plaintiff set out three items of Jewellery of a total value of Rs. 1,500/-with respect to which her claim as stated in para 5 of the plaint was that the jewels were her own Stridhana property and had been pledged by her husband and the 1st defendant for raising Capital for family business and that the 1st defendant was liable to return these jewels or their value.

On the evidence the lower Court found that the plaintiff did not substantiate her claim to these jewels and hence it rejected her claim in respect of the same. This finding also is not questioned before us. Hence we may leave out of account both the schedules 'B' and 'C' of the plaint. 'A' schedule sets out three items of immoveable property and the 4th item is described as 'Family business in shop premises No. 111, New Tharagupet, Bangalore City'.

Regarding this family business the lower court held that the actual business that the first defendant was carrying on at the time of the partition suit and for sometime prior thereto was merely in the nature of commission business and that there were no assets of the business available for partition. No share therefore in that business was allowed tothe plaintiff. In her memorandum of cross-objections the plaintiff has attacked] this finding and has claimed a share in the said alleged family business. The first item in 'A' schedule is a house in Rangaswamy Temple Street, Bangalore City, the 2nditem another house in Sannakambli Kurubarpet in Kailari Road, Bangalore City and the third item another house in Kilari Road, Bangalore City. The first item stands sold to the 3rd defendant under Ex-D-15 dated the 6th of January 1946 for Rs. 8,500 executed by the 1st defendant. The 2nd item similarly stands sold to the 2nd defendant (who is the wife of Arasappa, the brother of plaintiff's husband and the 1st defendant Melugiriappa) for Rs. 6,000/- under Ex. III dated the l0th January 1949 executed by the 1st defendant.

The third item stands mortgaged with possession to the 4th defendant for RS. 4,000/- under Ex. D-12 dated the 23rd July 1951 executed by the 1st defendant. In regard to these alienations the case of the plaintiff is that they had been executed fraudulently and collusively in order to deprive the plaintiff of her legitimate share and that they are not for any legal necessity or family benefit. She therefore claims that they do not bind her share in the properties which she is entitled to get free from those alienations.

On the question of fact as to necessity, the lower court found that the alienation of the 1st item under Ex. D-15 was fully supported by legal necessity but that the other two alienations were not so supported by legal necessity. As a matter of law, however, the lower court held that the sole surviving coparcener had no right to alienate the share of the widow of a deceased coparcener even for legal necessity and that therefore the plaintiff was entitled to her share in these properties free from the alienations.

At the same time the learned Judge held that 'it was but right that the plaintiff should pay her proportionate share' of such of the debts as hack been found to be for necessity and binding on the family. He also held that the 1st defendant in respect of the third item and the alienees in respect of each of the other two items had effected certain improvements in the properties in their respective possession and directed that the plaintiff should bear her proportionate share of the expenses of the improvements.

The result was that the plaintiff was given a decree for partition of 1/4 share in items 1 to 3 of the plaint 'A' schedule subject to the condition that before she takes possession of her share she should pay 1/4 of Rs. 9500/- (debt Rs. 8500/- plus improvement Rs. l,000/-) in respect of the first item to the third defendant, 1/4 of Rs. 4,300/- (debt of Rs. 2,300/- plus improvement Rs. 2,000/-) in respect of item No. 2 to the 2nd defendant and 1/4' of Rs. 2,687/- (debt Rs. 687/- plus improvement Rs. 2,000/-) in respect of the third item to the 1st defendant.

In the appeal the defendants contend as a matter of fact that all these alienations were for legal necessity binding on the family and therefore on the share of the plaintiff and as a matter of law she was not entitled to impeach these alienations. In her memorandum of Cross-objections the plaintiff questions the propriety of the decree asking her to pay 1/4 of Rs. 1000/- said to have been spentfor improvements of the 1st item and to pay a 1/4share of the debts and improvements in respect of the other two items.

2. The questions for consideration therefore in this appeal are (1) whether the 1st defendant, the sole surviving coparcener, had the right or power to alienate the suit properties for alleged legal necessity of the family, (2) whether the plaintiff has the right under law to impeach alienations made by the 1st defendant, the sole surviving coparcener,(3) if the answer to the first two questions is in the affirmative, whether the alienations under Ex. D-15, Exs. III and D-12 are supported by legal necessity, (4) whether the plaintiff is liable to meet her share of such of the debts as are found to have been incurred for legal necessity binding on the family, (5) whether the plaintiff is liable to pay her proportionate share of the amounts said to havebeen spent on improvements to the Suit properties and (6) whether the business carried on by the 1st defendant is a joint family business in which the plaintiff is entitled to a share and, if so, whetherthere are any assets of that business liable to partition.

3. As the first two Questions raise questions of Jaw which go to the root of the matter upon theanswers to which the remaining questions may or may not arise, it is proper that we should deal with these questions in the first instance.

4. The learned counsel appearing on behalf of the contending parties before us have commenced their arguments by stating two extreme and opposing contentions in support of their respective cases. On behalf of the appellants it has been contended that under the ordinary Mitakshara Law, a sole surviving coparcener has the undoubted right of absolute disposition over the property which hascome into his possession and that in the matter of such disposition he is not controlled by any ideas of legal necessity or benefit of the family which are appropriate and applicable only to a situation where there are two or more members constituting the joint family.

According to the learned counsel this absolutefight of the sole surviving coparcener is not taken away by Clause (d) of Sub-section (1) of Section 8 conferring upon certain female relatives a right to a share and that the said female relatives can put an end to that power of the surviving coparcener and save their shares from the consequences of its exercise only by taking appropriate steps under Subsection (5) of the same section to have their shares separated off and placed in their possession.

On behalf of the plaintiff it has been contended that the right conferred upon a female relative by Clause (d) of Sub-section (1) of Section 8 is anabsolute right vesting in her at the moment the joint family property passes to a single coparcener to a certain definite unvarying share in the jointfamily properties which the sole surviving coparcener is hound to hand over to her whenever sheway claim possession of it under Sub-section (5) un-diminished unencumbered and unaffected by any dealings of his with the property subsequent to thetime when her statutory right became vested in her.

The actual effect of this contention is that, inthe words of the learned counsel himself, the female relative virtually ceases to be a member of the family thus depriving the surviving coparcener of his right to deal with her share as if it were part of joint family property and that her share given to her by the Act is really in the nature of a bailment or deposit or trust property of which the sole surviving coparcener is a mere bailee, depositee or trustee.

5. In our opinion it is now too late in the day to press these extreme contentions. The nature of a female relative's right under the statute has been the subject of examination both by the old Mysore High Court and by this Court and certain principles have been evolved and laid down by the Court for determining the nature of that right. Even if one should treat the matter as being still res Integra, we are clearly of the opinion that these extreme contentions are not only untenable in the face of the provisions of the Act but also of little or no value even as the starting points for discussion of the subject.

It is quite clear that under Clause (d) of Sub-section (1) of Section 8 the very passing of the properly by survivorship to a single coparcener is subjected to the right to share of the classes of females enumerated in the section. To permit the sole surviving coparcener to exercise his absolute rights of disposition under the ordinary law of Mitakshara would be to defeat the right expressly conferred upon the female by the statute; that right of the surviving coparcener under the Mitakshara Law is clearly inconsistent with the provisions of the Act and is not therefore saved by Sub-section (2) of Section 2 of the Act and cannot be permitted to operate to defeat the statute.

The contention on behalf of the plaintiff that the right to a share conferred upon her by Clause (d) of Sub-section (1) of Section 8 is a right to an absolute property at the very moment of its vesting is opposed to the plain meaning of Sub-section (5) of Section 8 as well as Clause (f) of Sub-section (2) of Section 10. The former provision shows that the female relative has to obtain her share by getting it separated and placed in her possession which, means she has to ask for a partition and get a partition effected Under the latter one of the items of Stridhana property is 'property obtained by a female as her share at a partition'.

Until, therefore, the female actually obtains the property as her share at a partition it cannot be described as her absolute Stridhana property. To say that the female ceases to be a member of the family when the property passes by survivorship to a single coparcener is equally unacceptable. Section 22 of the Act preserves the right of females to maintenance under the ordinary law of Mitakshara and puts an end to it only when such female being entitled to a share under Section 8 actually obtains such share. The basis for the right to maintenance is undoubtedly membership of the family. The statute which preserves that right necessarily preserves the continuance of the female relative's membership of the family.

6. These contentions which, as stated above, are wrong on principle, are also opposed to authority. In Chikkanagamma v. Shivaswamy, 44 Mys HCR 473, it was held that a female entitled to ashare under the Mysore Act does not become a coparcener of the family which term is restricted to male members who acquire interest in the joint or coparcenery property by birth, that such coparceners alone are entitled to common possession and common enjoyment of coparcenery property and that therefore the female is not entitled either to separate possession or joint possession and further that the same position is implicit in the provision contained in Sub-section (5) of Section 8 which says that the female relative has to get her share separated off and placed in her possession.

In Venkatachaliah v. Ramalingiah, 49 Mys HCR 456, another Bench of the old Mysore High Courtexpressed the view that such a female would become a co-sharer along with a surviving coparcener. A Bench of this Court consisting of Nittoor Sreenivasa Rau and Hegde, JJ. in Regular Appeal 125of 1955 has accepted as correct the position of law as stated in the earlier decision of the old Mysore High Court, but declined to accept the view stated in the latter case that the female relative becomes co-sharer.

The reason stated is that a co-sharer is one who is entitled to joint possession and also to an aliquot share of the profits of the property whereas a female relative getting a share under the Mysore Act has first to get her share separated off before obtaining possession and until then she is entitled not to a share in the profits but to maintenance. In that appeal when a person died leaving a widow and a son and the son sued for recovery of a debt,which was admittedly a joint family asset, it wascontended that the widow also should have been joined as a plaintiff because she, by virtue of the Act, had acquired a separate interest and was a to-sharer with her son,

The Bench repelled the contention that the widow was such a co-sharer as well as the contention that the share of the widow got separated the moment the property passed to the son as the sole surviving coparcener in the family. The Bench after a discussion of the provisions of the Act and the relevant decisions of the old Mysore High Court came to the conclusion that the entire joint family property passes by survivorship to the single coparcener, that the property continues to be impressed with its character as joint family property and that the sole survivingcoparcener will be in the position of the Karta or the manager of the family.

It also held that the female member, subject to whose right the property passes by survivorship to the sole surviving coparcener, continued to be a member of the joint family until she gets her share separated off and placed in her possession. The Bench, however, did not dissent from the view stated in Pogaku Venkatachalaiah's case, 49 Mys HCR 456 that the interest of the female relative under Clause (d) of Sub-section (1) of Section 8 was a vested interest, nor did it find it necessary to dissent from the ruling of another Bench of the old Mysore High Court reported in Dakshinamurty v. Subbamma, 45 Mys HCR 102, to the effect that such a female's right to separation of her share and the possession of it was a right which she had from the moment the last but one coparcener died.

7. Then there are two judgments delivered by one of us sitting as a single Judge in SecondAppeal No. 12 of 1954 (Mys) and Second Appeal 43 of 1954 (Mys). In the former a female member of a family had obtained a decree against the sole surviving coparcener for maintenance charged upon certain properties and in execution of the decree got some of the charged items sold. On the footing that the property was joint family property the lower appellate court had held that the female member who was entitled to a share therein had lost her right to maintenance and that in execution of the maintenance decree she must be deemed to have purchased her own share in the property and not any further interest.

In further support of the conclusion of the lower appellate court it was argued that the statutory charge under Section 26 of the Mysore Act X of 1933 could only have been in respect of property mentioned in Sub-section (3) of Section 22, i.e., joint family property in the possession or control of its manager and that when property survives to a single coparcener there could no longer be a joint family much less therefore a manager thereof. This contention had to be rejected in view of the clear decision contained in the judgment of the Bench in Regular Appeal No. 125 of 1955 (Mys).

The subject of consideration in Second Appeal 43 of 1954 (Mys) was the effect to be given to alienation by a female member in respect of the share her right to which is declared by Clause (d) of Sub-section (1) of Section 8 of the Act. Following the judgment of a Bench of the old Mysore High Court in Chikka Kempegowda v. Madiah, 53 Mys HCR 278, the opinion of Venkataranga Iyengar, J. stated therein to the effect that the right acquired by a female under Section 8 (1)(d) of the Act is a vested right transferable and heritable was accepted as correct in principle after an examination of all relevant considerations.

It was further held that the share which vested in the female as at the time joint family property passes by survivorship to a single coparcener was fixed or quantified as at that time and that such a vested right could not be defeated or disturbed by subsequent events. While discussing the nature and incidents of that right it was pointed out that if would be subject to the normal rule or incident of Mitakshara Law which makes the joint family property liable to meet the maintenance of members, just debts and necessities of the family because that incident is not inconsistent with any of the provisions of the Act.

8. As both the two last mentioned decisions arc by a single judge, we permitted the learned counsel before us to canvass their correctness. The learned counsel on behalf of the plaintiff-respondent while accepting as correct the direct decision in Second Appeal 43 of 1954 (Mys) to the effect that the female member's right is a vested right quantified at the time of vesting not liable to be defeated or disturbed by subsequent events, questions the correctness of the further statement that the said right of the female is subject to the liability to meet the necessities of the family.

He repeats the argument advanced in Second Appeal 12 of 1954 (Mys) that when the property passes to a single coparcener there is neither a family nor a manager thereof and suggests that the opinion of the Bench in Regular Appeal No. 125 of l955 (Mys) which is opposed to his contention requires to be reconsidered by a Full Bench. According to the learned counsel the basic conception of Mitakshara law in respect of a joint family is that it consists of two or more male coparceners who acquire a right to the property by birth, that a female who has by virtue of certain statutes acquired a right to too same property does not acquire that right by birth and that therefore there could never be a joint family in the sense of the Mitakshara law consisting of a man and a woman.

We do not think that this correctly reflects the true conception of Mitakshara law. The fact that the Mitakshara recognises proprietary rights in respect of joint family property only of the males while conferring only such rights as right to maintenance on the females does not mean that a Mitakshara joint family should consist only of men and not of women also. It is also clear that the character of the family property docs not change by reason of the fact it may come to be held by a single male coparcener because if and when the male coparcener either begets or adopts a son or the widow of a deceased coparcener makes an adoption the son so born or adopted acquires a right by birth or adoption in that property.

The anxiety of the law to preserve the family and its continuity is equally clear from the special value or merit it attaches to a Hindu begetting a son or failing which making an adoption; even when he dies without making an adoption it is considered a pious duty of his widow to make an adoption to him. The principle underlying the prohibition of the law against alienation of joint family property is that that property should be carefully preserved for the benefit and advancement of not only those that are already born but also of those that are yet to be born or are still in the womb.

The right by birth which a coparcener acquires in joint family property is, as is well known, not restricted to any particular item of property nor is it defined or demarcated until a partition takes place; till then his rights extend to the entirety of the joint family property. The result is that the joint family property is owned not by a single person but by several persons.

Logically therefore no alienation thereof is possible unless all persons interested in the property join in the alienation. Hence the text which defines or qualifies the power of a manager does not use the expression 'manager' but merely sets out the circumstances in which even a single person may make an alienation of properly in which several persons are interested.

That explains why a last surviving single coparcener may legally convey the entire interest but is morally required to preserve the property for the benefit of those that are yet to be born. It is clear from the foregoing that when joint family property comes to ho held by a single coparcener there is, according to the theory of Mitaksharas law, neither an extinction of the family nor a complete transmutation of the character of the property.

9. The question is whether by conferring upon female members a right to certain specified shares in the joint family property the statute hasdestroyed the idea of a joint family itself. As pointed out by a Bench of this High Court in Chandamma v. Malige Veerabhadriah, 37 Mys LJ. 860, of which one of us was a member, the share conferred by the statute on a female member is expressed in terms of a fraction carved out of a male relative's share and to that extent the shares available to male members under the ordinary law have got attenuated.

It is obvious that the female gets a right to a share by virtue of her membership of the family and the ascertainment of her share is based upon a certain relationship between her and a male member of the family either as wife, daughter or sister. That was also a case falling under Clause (d) of Sub-section (1) of Section 8, and the share of the plaintiff therein was ascertained by theoretically allotting one share to her deceased husband and one share to the living brother of her husband as if the partition had taken place between those two brothers.

It was pointed out in Second Appeal 43 of 1954 (Mys) that the expression share contained in Clause (d) of Sub-section (1) of Section 8 necessarily contemplates a partition and that such partition for ascertainment of the share must be postulated as taking place between the last but one deceased coparcener and the last surviving coparcener. Hence for the purpose of ascertaining the share one has to assume the continued existence of a deceased coparcener until the partition actually takes place, which means that the family or even the coparcenery is assumed to continue till then.

The continuity of the family by births or adoptions is clearly not outside the contemplation of the statute. On the contrary the widow's right to make an adoption is placed on a firmer footing by Section 9 of the Act relieving her at the same time of certain consequences under the ordinary law which might be prejudicial to her right to a share conferred by the statute. All doubts in the matter are finally removed by the provisions of Sections 26, 22 and 10 of the Act.

Section 22 preserves the right o female members to receive maintenance until such members, if entitled to a share under Section 8, actually obtain that share. Females entitled to shares by virtue of Section 8(1)(d) are not outside the purview of this provision, nor will females who were receiving maintenance when there were two male coparceners alive lose that right when one of them dies leaving a single coparcener in possession of the property.

Sub-section (3) of Section 22 which would undoubtedly apply when at least two male coparceners are alive will not cease to apply when one of them dies. Under that sub-section the manager of the joint family is bound to maintain those female relatives so entitled to maintenance out of the joint family property in his possession or control, and the said entire property is subjected to a charge by virtue of Section 26 in the circumstances mentioned therein. A coparcener who was a manager when there were two coparceners and was bound to maintain the female relatives under Section 22 (3) will not be relieved of that duty when he becomes a sole coparcener upon the death of the other.

Nor can it be said that, the joint family property in his possession which was liable to maintain the female relatives ceases to be subject to that liability. Hence even according to the contemplation, of the statute property which was joint family property when there were two or more male coparceners will continue to he joint family property when on the death of all coparceners but one that one coparcener alone gets possession of it and that last surviving coparcener can rightly be described as the manager of that family. That the character of the property does not change until the female relative obtains her share and reduces it to her possession is quite clear from Clause (f) of Sub-section (2) of Section 10, according to which one of the items of Stridhana property of a female is the property obtained by her as her share at a partition.

10. We are therefore satisfied that the conclusions stated by their Lordships in Regular Appeal 125 of 1955 (Mys) that when the joint family property passed to a single coparcener it will continue to be impressed with the character of joint family property and the surviving coparcener is in the position of a manager are fully warranted by both the principles of ordinary Mitakshara law and the logical effect of the provisions of the statute itself. We reject the contention that they require to be reconsidered by a Full Bench.

11. If, therefore the property continues to be joint family property and in the contemplation of the law the joint family continues with the lust surviving coparcener as the Manager, we see no difficulty in balding that the normal incidents of ordinary Mitakshara law which make the property liable to meet what may compendiously he described as legal necessities of the family and which confer on the Manager the power to alienate the joint family property for such necessities will continue to apply because those incidents not being inconsistent with any of the provisions of the statute are saved by Section 2(2) of the Act.

Maintenance of members which is one of the undoubted necessities of the family is, as already pointed out, expressly preserved by the statute along with the liability of joint family property getting charged and wholly sold for recovery of such maintenance. It is argued that because this item alone of necessity is provided for in the statute the liability of a female member's share to any other type of necessity must be taken to have been excluded by the statute.

This cannot be accepted for two reasons. The reason why express provision in respect of maintenance was found necessary is obviously to avoid the possible argument that the right to a share has been conferred on the females in substitution or extinction of the right to maintenance. When the statute is careful to state that a female's share in the joint family property becomes her absolute Stridhana only when she obtains that share at a partition and states that nothing contained in the statute shall be deemed to affect any rules or incidents of Hindu Law which are not inconsistent with its provisions it logically follows that until a female actually takes her share the entire joint family property including her share will continue to be subject to the normal incidents of ordinary Hindu law, one of which is its liability to meet family necessities.

The statement in the judgment in Second Appeal 43 of 1954 (Mys) to the effect that the female's share under Section 8(1)(d) is quantified as at the time the property passes to a single coparcener does not mean that any specified property is actually sequestered and removed from the purview of the manager's control over it. The quantum of her share is fixed and that does not fluctuate. The property that is available for partition has however to be ascertained when the partition is asked for.

What is meant by the statement in that judgment to the effect that the right of the family being a vested right is not liable to be defeated or disturbed by subsequent events is that that share is not liable to fluctuation by subsequent births or deaths in the family. It does not mean that the share itself gets immediately separated off and remains apart bearing a character other than its original character as joint family property because under Section 8(5) it has got to be separated off and placed in the possession of the female and under Section 10(1)(f) it becomes her stridhana property only when she so obtains her share.

12. So far as the contentions on behalf of the appellants arc concerned, we have already rejected the argument that the sole surviving coparcener can exercise his ordinary Mitakshara law right of absolute disposition because it is undoubtedly inconsistent with the express provisions of the statute. Another reason for the same may be stated and that is that by virtue of the statute conferring a right on a female member to a share in the property the sole surviving male coparcener ceased to be the only person having proprietary interest in the property.

Although the other or others having such an interest by virtue of the statute may be females and hence not coparceners and although they may not be entitled to immediate possession or even joint possession and control with him, they are nevertheless persons who have a vested proprietary interest in the property. Another argument of the learned counsel for the appellants is that the right to impeach alienations by a manager is a right enjoyed only by coparceners and not by others, in support of which he cites the ruling in Mt. Ram Dei v. Mt. Gyorie : AIR1950All76 .

The proposition no doubt is stated in those terms in the said judgment; it however appears from it that Ram Dei who sought to impeach an alienation did not claim any proprietary right but only claimed possession of property for the purpose of residence and in the right of a person entitled to maintenance. He also referred us to a judgment of the Madras High Court reported in Rathinasabapathi v. Saraswathi Ammal, : AIR1954Mad307 in which it was held that a widow asking for partition of joint family property in enforcement of the right conferred on her by Hindu Women's Rights to Property Act (Central Act XVIII of 1937) was not entitled to impeach alienations made by the manager of the family.

In the first place the alienation thereunder was a settlement or gift without consideration made without the consent of even male coparceners and hence void ab initio with the result the question whether the widow had the right to impeach it did not really arise. Secondly, the conclusion appears tobe not quite consistent with the previous rulings of the same High Court in one of which, viz., Saradambal v. Subbarama Ayyar, ILR 1942 Mad 630: (AIR 1942 Mad 212) it had been held that the widow took her husband's interest under the Act subject both to the obligations as well as rights attached to that interest and that such interest was the interest of an undivided member of a joint family in the joint family property.

Two Benches of the Bombay High Court in the rulings reported in Shivappa v. Yellawa, : AIR1954Bom47 and Mahadu v. Gajarabai, : AIR1954Bom442 have taken the contrary view. They hold that although the interest of the widow under the Central Act is acquired neither by succession nor by survivorship, that interest is somewhat analogous to the undivided right of a coparcener at least so far as the manager's powers of management and alienation are concerned.

We must say these three decisions have no direct bearing on the question before us. They deal with the Central Act XVIII of 1937 under which it is declared that the widow of a deceased coparcener shall have in the joint family property the same interest as her husband with the right of claiming partition as a male owner. But the interest so devolving upon a widow is expressly declared to be the limited interest known as a Hindu woman's estate. The provisions of the Mysore Act X of 1933 are materially different from those of the Central Act.

Hence very little assistance can be derived from the above decisions. The only principle of which some use may be made by the plaintiff in the present case is to argue that the right to impeach alienations by a manager need not necessarily be confined to a coparcener strictly within the meaning of Hindu Mitakshara Law but may also be exercised by a female member on whom certain proprietary rights have been conferred by the statute in respect of joint family property. This also serves to answer the contention on behalf of the appellants that the female member not being a coparcener is not entitled to impeach alienations by a manager.

13. Another argument in denial of the female member's right to question the alienations by the last surviving coparcener is that she merely obtains the interest of the appropriate male relative out of whose share her own share is carved out by the statute. It is stated that she simply steps into the male relative's shoes. It is therefore argued that if the interest of the male relative is subject to the liabilities attached to it by the ordinary law the female relative also gels her own share under the statute subject to the same liabilities.

With reference to this argument the answer on behalf of the plaintiff-respondent is that although this may support the imposition on the female's share such liabilities as may be existing before this share vests in her it cannot entitle the last coparcener to deal with her share in connection with any liabilities incurred or occurring subsequent to such vesting. We do not think that either of these points of view is correct.

The right which the widow gets is a statutory right conferred on her by the statute. The fact that her share is ascertained with reference to the shareof a male relative does not mean that the interest of the male relative passes to the female either by survivorship or by inheritance. Hence the ordinary rule that devolution of interest is subject to the obligations or liabilities attaching to the interest at the time of devolution does not apply.

The liability of the female's share for the reason already explained by us must be traced to her membership of the family and the character of the property as joint family property carrying with it the normal liability to meet the necessities of the family. That is a liability which attaches to the property itself under the law and is not one imposed on it by the male relative acting as an owner of that property.

14. From the above discussion on principle as well as authority, the following propositions clearly, emerge:

When under the provisions of Clause (d) of Sub-section (1) of Section 8 of the Mysore Act X of 1933 joint family property passes to a single coparcener by survivorship subject to the right to shares of female relatives ;

(a) though the right to a share quantified or fixed at the time of such passing vests at once in the female relative which right is transferable as well as heritable, the share itself does not get separated off nor does she become in respect of it a coparcener or co-sharer entitled to separate or joint possession with the single male coparcener until at a partition she gets her share separated off and put in her possession; the property obtained by her at such partition as and for her share becomes her Stridhana; till then her undivided share continues to be part of joint family property;

(b) Until such partition and separation of share as aforesaid, the entire property stands impressed with the character of joint family property and remains in the possession and control of the single male coparcener as the manager of the family, and he has in respect of the entire property the same power of alienation for legal necessity as the manager of a joint family has under the ordinary law of the Mitakshara, but he cannot exercise his right of absolute disposition under the said law so as to affect the female relative's share;

(c) the female relative has the right of impeaching the alienations made by the single coparcener as being unsupported by legal necessity or family benefit or as being beyond the powers of the manager under the ordinary Mitakshara Law.

(The rest of the judgment is not material to this report as the same contains discussion of evidence and not any question of law of importance.)

15. Order accordingly.


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