1. This second appeal by the defendants against the judgment and decree in A. S. 3 OF 1970 on the file of the Principal Sub-Judge, Srikakulam confirming the judgment and decree of the trial court in O. S. 55/66 on the file of the District Munsif's Court, Cheepurupalli.
2. The first plaintiff is the father and plaintiffs 2 and 3 and one Yerriah are his sons and according to them they constituted a Hindu joint family of which the first plaintiff was the manager. Yerriah got separated as per registered partition deed dated 30th October, 1962, the details of which are mentioned in plaint Schedules A and B. The properties mentioned in Schedule B having been allotted to the said Yerriah and the properties mentioned in Schedule A having continued to be joint properties of the rest of the family members viz., Plaintiffs 1 to 3. Item 4 of the plaint A Schedule property alone is the subject-matter of the suit in this second appeal and as per the plaint averment is jointly owned and enjoyed by all the plaintiffs. It is the plaintiffs case that on account of grudge and ill-will and other factors which it is not necessary to note for the disposal of this case, defendants 1 and 2 trespassed into the suit land unlawfully in July 1965 removed Ragi crop raised by them and thus dispossessed the plaintiffs. The plaintiffs therefore filed the suit for the recovery of possession.
3. The defendants claimed that they have purchased this property under Ex B-3 dated 22-12-1964 from the said Yerriah. They contended that partition was in fact effected even in 1959 and in that partition this item of property fell to the share of Yerriah and the subsequent partition pleaded by the plaintiffs is collusive one pleaded for defeating the rights of the defendants.
4. Both the courts below held that partition evidenced by registered partition deed dated 3-10-1962 pleaded by the plaintiffs is true and that the property did not fall to the share of Yerriah at the so-called partition held in 1959 as pleaded by the defendants. The suit was accordingly decreed by the trial court. Even during the pendency of the suit in the trial court, the third plaintiff died and the petition to bring his L. Rs. on record was filed; but for reasons which are not quite clear from the record now placed before me, that petition was dismissed. The appeal was preferred by the defendants before the learned Subordinate Judge only as against plaintiffs 1 and 2 and it was contended that inasmuch as the legal representatives of the third plaintiff were not brought on record, the suit abates as a whole and alternatively at least to the extent of the third plaintiff and therefore the decree of the trial court in favour of all the plaintiffs cannot be sustained. The lower appellate court while confirming the findings of the trial court on all the issues and maintaining the decree passed by it held the suit could not be decreed in favour of all the plaintiffs and directed that wherever the word ' plaintiffs ' occured in the operative portion of the decree of the trial court, the figures ' 1 and 2 ' should be added so that the decree was in favour of plaintiffs 1 and 2 only.
5. In this second appeal the only question that was argued and arises for consideration is whether the suit by plaintiffs 1 and 2 was maintainable and could be proceeded with in spite of the legal representatives of the third plaintiff not having been brought on record. Mr. Poornaiah the learned counsel for the appellant contends that the right to sue does not survive to the 1st and 2nd plaintiffs. Thus, the decree cannot be sustained even to the extent of 1st and 2nd plaintiffs and as a result the suit abated as a whole. His contention is that after the commencement of the Hindu Succession Act on the death of the third plaintiff, the coparcenary interest of the third plaintiff in the property did not devolve by survivorship upon the 1st and 2nd plaintiffs; but it devolved upon the female relatives specified in class 1 of the schedule and male relative specified in that class who claimed through such female relative as provided in S. 6 of the Act. He points out that P. W. 1 has stated that the third plaintiff was survived by his wife and children. It is also pointed out that in fact the other plaintiffs took steps to bring them on record by filing an I. A. was dismissed. Since coparcenary interest of the third plaintiff devolved upon the heirs specified in class 1 and that interest, as provided in Explanation 1 to Section 6 of the Hindu Succession Act, is that the share of the property which the deceased coparcenary have been entitled to if a partition had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not. That being the position, plaintiffs 1 and 2 could not represent the interest of the heirs specified in class 1 on whom interest of the third plaintiff devolved. Reliance for this proposition is placed by the learned counsel for the appellants upon a Full Bench decision of Kerala High Court in Venkateswara Pai Rama Pai v. Luis, : AIR1964Ker125 ( FB ). It was held therein as follows :
'Where a suit is filed against a coparcenary for specific purpose of a contract for sale of landed property belonging to the joint Hindu family entered into by three members thereof as representatives of the family and during the pendency of the suit and after the Hindu Succession Act came into force one of the defendant-members died intestate leaving behind a widow, daughters and sons, the failure of the plaintiffs to implead the legal representatives of such deceased member defendant would result in partial abatement of the suit as respects his share in the suit property...............................
Such deceased member having left behind him a widow, sons and daughters, the proviso and the Explanations to Section 6 of the Hindu Succession Act are attracted and the result is that his share in the coparcenary property must be deemed to have been partitioned out immediately before his death and to have devolved on his heirs. That share, being no more part of the coparcenary property is not within the competence of the Karta of the joint family to represent in that suit. '
This decision was followed by Calcutta High Court in Narayan Prasad Ruia v. Mutuni Kohain. : AIR1969Cal69 and it was held that a female heir having been left behind the proviso to Sec. 6 read with Explanation 1 would be attracted and the result was that the share of the deceased co-parcener must be deemed to have been partitioned out immediately before his death and devolved upon his mother. That being so, the very nexus of the joint family was gone and the Karta could not represent his deceased son's mother and necessarily his wife, on partition.
6. In order to appreciate this contention, it is necessary to read Section 6 of the Hindu Succession Act which is as follows ;
'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 intestate succession, as the case may be, under this Act and not by survivorship.
Explanation :- 1. For the purposes of this Section the interest of a Hindu Mitakshara coparcener shall be deemed to have the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.
Explanation :- 2 Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein. '
A close reading of the section would disclose that Section 6 deals with devolution interest in co-parcenary property and not with the disruption or continuance of the joint family or partition of joint family property. Under the general principles of Hindu Law on the death of a coparcener his interest devolves by survivorship upon the surviving members of the coparcenary in all cases ; but Section 6, while continuing devolution of the deceased co-parcener's interest by survivorship makes an exception to the limited extent as mentioned in proviso to Section 6 and that is in case the deceased had left him surviving a female relative specified in class I to the Schedule or a male relative specified in that class who claims through such female relatives specified in class I to the Schedule survive the deceased coparcener, the general rule of devolution by survivorship of the interest of coparcenary shall not apply ; instead that interest would devolve on such relatives.
It would therefore be necessary in such cases to determine what the interest of the coparcener was on the date of his death. It is for specifying that interest. Explanation 1 is added to Section 6 and that interest is deemed to be the share in the property that would have been allotted to such coparcener if partition had taken place immediately before his death. But no partition as such is effected by such devolution only for the purpose of ascertaining the interest of the coparcener and the share that would be allotted to him, it is to be assumed that there was a partition on the date of death of such coparcener. By such devolution, no partition in fact takes place. That is made further clear by the expression ' for the purpose of this section ' occurring in Explanation 1 to that Section. So, the share that is deemed to devolve upon the female and male relatives specified in class 1 to the Schedule is only for the purpose of the section and not for the purpose of determining the status of the members of that coparcenary. Neither the wording of Section 6 nor the proviso thereto not the Explanations to that section leads to the conclusion that on the death of one of the coparcener survived by female and male relatives mentioned in class 1 to the Schedule that either a partition is effected or severance of law. Notwithstanding such devolution the family continues to be joint. The notional partition is assumed only for the purpose of determining the share to which the deceased coparcener would have been entitled if there were in fact a partition.
7. A Full Bench of this Court in P. Govinda Reddy v. Golla Obulamma, : AIR1971AP363 ( FB ) observed :
'Section 6 is concerned with the devolution of a deceased coparcener's interest alone. It has nothing to do with the disruption of the joint family status. The coparcenary, will continue notwithstanding the death of a coparcener until partition is effected . '
Hence in my opinion by the death of the third plaintiff, no disruption of the joint family as such was caused.
8. Mr. Poorniah also relied upon that decision and pointed out to the following opinion of the Full Bench which laid down ;
'The coparcenary will continue as ever with the Karta managing the entire coparcenary property including the interest of the deceased coparcener if all the heirs of the deceased are not coparceners themselves. The Kartha as Manager can then effectively bring a suit for enforcement of the mortgage security representing all the heirs of the mortgagee. The other coparceners who have interest in the mortgage security was not necessary partners to such action ; but there are only proper parties to the same and their non-inclusion or inclusion out of time will not be fatal to the suit. On the other hand if the proviso of Section 6 of the Act applied on account of the existence of the heirs referred to therein, there will be of course no disruption of joint family status ; but the coparcenary property will not include the interest of the deceased coparcener by reason of succession under the Act and it will not then be available to the coparceners and heirs as coparcenary property and the Kartha in relation thereto, therefore, cannot exercise his powers as a Kartha. The interest having devolved on various heirs in specified shares and such shares being tenants in common in relation to that property to which the coparceners belong cannot represent the family heirs who are not coparceners, in fact all being tenants in common in relation to the interest of the deceased coparcener, each one of them as already discussed as heirs of the mortgage is a necessary party to the suit of enforcing the mortgage security. That is the position warranted by Section 6 of the Hindu Succession Act read with Sec. 67 of the Transfer of Property Act Sec. 45 of the Contract Act and Order 34, Rule 1, Civil P. C. The clear language of that section leads to that conclusion. '
In the judgment their Lordships no doubt held that the suit is not maintainable unless the relatives specified in proviso to S. 6 of the Hindu Succession Act are brought on record. But it must be borne in mind that there was a suit on a mortgage and in view of Order 34, Civil P. C. All persons having interest in the mortgage must be before the court. Unless all the persons having interest in the mortgage property are on record, no decree could be passed in a mortgage suit. That decision cannot be applied to a case of a recovery of possession instituted against a mere trespasser by some of the coparceners entitled to an undivided interest in the property.
9. Mr. Poorniah argues that since in the instant case there are female and male relatives specified in class 1 to the schedule of the Hindu Succession Act, plaintiffs 1 and 2 cannot represent the interest of those relatives on whom interest of the deceased coparcener has devolved under Section 6 of the Hindu Succession Act. While it is true that as ' Kartha ' of joint family the 1st plaintiff could not represent the interest of the female and male relatives mentioned in clause I of the Schedule to the Hindu Succession Act, the fact remains that even after such devolution, such relatives only have an undivided share in the entire plaint schedule property. As the first plaintiff and 2nd plaintiff also continued to have an undivided share- the 1st and 2nd plaintiffs entitled to 2/3rd and those female and male relatives of the deceased coparcener I. E., third plaintiff being entitled to the remaining 1/3rd - as discussed above and also held by the Full Bench of our High Court in : AIR1971AP363 ( FB ) it cannot be said that there was a partition of the joint family property or disruption of the joint family status, hence some of the co-sharers I. E., 1st and 2nd plaintiffs are entitled to continue the suit. The present suit is one for recovery of possession from the trespassers. Both the courts below have held that the defendants are trespassers and are liable to be evicted. Even in the first instance as the 1st and 2nd plaintiffs had an undivided 2/3rd share in the suit property they could have maintained the suit for recovery of possession of the entire property even without impleading the third plaintiff. Merely because in the first instance the third plaintiff and later, on his death his legal heirs were not brought on record the initial right of plaintiffs 1 and 2 to bring a suit for recovery of possession of the entire plaint schedule property is not lost. On account of the death of the third plaintiff that right to sue is not in any way forfeited and does not abate so long as the heirs of the third plaintiff do not claim adversely.
While the trespasser in any event does not have any right to continue in possession of the properties, the plaintiffs 1 and 2 being entitled to an undivided share in the entire property are entitled to the possession of the whole as against a trespasser. It is nobody's case that the interest of the third plaintiff has devolved upon the defendant. Nor does the defendant claim through any of the heirs of the third plaintiff. The right to sue in my opinion survives to the other co-sharers notwithstanding the fact that the 1st plaintiff cannot represent the heirs specified in class I to the Schedule of the Hindu Succession Act. Plaintiffs 1 and 2 being the two other co-sharers of the entire property and being entitled to recover possession of the entire property from a trespasser who is a stranger to them, can continue the suit for they have an interest in every portion of the property so long as there is no partition by metes and bounds. It would be open to the heirs of the deceased third plaintiff to claim their share if they so desire ; for every co-sharer is entitled until partition by metes and bounds to be in possession of the entire property and no co-sharer can claim until such partition to any particular portion of the property. In this view of the matter, though not as the Kartha of the joint family and though not as surviving members of the co-parcenary,, plaintiffs 1 and 2 being co-sharers entitled to an undivided share in the entire property jointly belonging to themselves, i.e., plaintiffs 1 and 2 and the male and female relatives of the deceased third plaintiff to in the proviso to Section 6 of the Hindu Succession Act, can continue the suit in respect of the plaint schedule property. No exception can therefore be taken to the decree of the trial court. Plaintiffs 1 and 2 are entitled to recover the entire plaint schedule property. For the foregoing reasons, this second appeal fails and is accordingly dismissed with costs. Leave granted.
10. Appeal dismissed.