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Ram Avadh Vs. Kedar Nath - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 372 of 1969
Judge
Reported inAIR1976All283
ActsHindu Law; Succession Act, 1925 - Sections 124
AppellantRam Avadh
RespondentKedar Nath
Appellant AdvocateB.L. Shukla and ;K.M.D. Chak, Advs.
Respondent AdvocateSripat Misra, Adv.
DispositionAppeal dismissed
Excerpt:
family - succession - section 214 of succession act, 1924 - family consisting of widow and her son - loan advanced by widow - death of widow - action for recovery by son - succession certificate not obtained - widow not karta of joint family - held, son on death of widow acquires interest in the property by survivorship and entitled to maintain suit for recovery even in the absence of succession certificate. - - 7. it is by now well settled that coparcenery under the mitakshara school is a creature of law and cannot arise by act of parties except in so far that on adoption the adopted son becomes a coparcener with his adoptive father as regards ancestral properties of latter......at the rate of 6 per cent per annum. the plaintiff alleged that he and his mother formed a joint hindu family; that the mother was the karta of that family; that the said loan was advanced out of the said joint family funds, and that smt. rajwanta having died the plaintiff was entitled to recover the said loan with interest. 2. the defendant contested the suit on a number of grounds. he pleaded, inter alia, that he had not borrowed any sum as alleged and that the pronote and the receipt were forged documents. he also pleaded that the suit was barred by time and that the plaintiff was not entitled to maintain the suit without obtaining a succession certificate. 3. the trial court having found no merits in any of the contentions raised by the defendant decreed the suit against him......
Judgment:

T.S. Misra, J.

1. This appeal by the defendant arises in the following circumstances. The respondent Kedar Nath commenced an action for recovery of principal amount of Rs. 1000/- plus a further sum of Rs. 175/- as interest from the defendant-appellant with the allegation that the defendant had obtained a loan of the said sum of Rs. 1000/- agreeing to repay the same on demand and executing a pronote for the same on 20-6-1965 in favour of the mother of the respondent Smt. Rajwanta. He had also agreed to pay interest at the rate of 6 per cent per annum. The plaintiff alleged that he and his mother formed a joint Hindu family; that the mother was the Karta of that family; that the said loan was advanced out of the said joint family funds, and that Smt. Rajwanta having died the plaintiff was entitled to recover the said loan with interest.

2. The defendant contested the suit on a number of grounds. He pleaded, inter alia, that he had not borrowed any sum as alleged and that the pronote and the receipt were forged documents. He also pleaded that the suit was barred by time and that the plaintiff was not entitled to maintain the suit without obtaining a succession certificate.

3. The trial court having found no merits in any of the contentions raised by the defendant decreed the suit against him. The appeal preferred by the defendant from that decree was also dismissed. The appellate court below concurred with the trial court that the defendant did borrow the amount in question and that the pronote and receiptwere not forged documents. It appears that the plea of limitation was not pressed before the appellate court below. The point that the plaintiff was not entitled to maintain the suit without a succession certificate was, however, pressed on behalf of the defendant before the appellate court below. While examining that question, the appellate court below found that the plaintiff-respondent and his mother Smt. Rajwanta formed a joint Hindu family and that the loan in question was advanced to the defendant out of the joint family funds. On these findings the appellate court below concurred with the trial court that no succession certificate was required for maintaining the suit. The appeal was accordingly dismissed. Aggrieved by that decision the defendant has now come up to this Court on second appeal.

4. The sole point urged on behalf of the appellant was that both the courts below have erred in holding that no succession certificate was required for maintaining the suit. The submission was that the mother of the plaintiff-respondent was not a coparcener, hence on her demise her interest in the debt in question did not pass by survivorship to the plaintiff. The plaintiff being the son of Smt. Rajwanta, the argument proceeded, received her property by succession as her heir and therefore the court should not have passed a decree in favour of the plaintiff, unless he obtained and produced a succession certificate under Section 214 of the Indian Succession Act. In order to appropriate this argument, it is necessary to bear in mind that both the courts below have found as a fact that the plaintiff and his mother Smt. Rajwanta formed a joint Hindu family and that the loan in question was advanced to the defendant out of joint family funds These two findings are based on appreciation of the evidence on record and the surrounding circumstances of the case and being findings of fact are conclusive. It was also found that the pronote was executed in favour of the mother of the plaintiff because she was the Karta of the family.

5. Learned counsel for the defendant-appellant submitted that Smt. Rai-wanta could not under law be the Karta of the joint Hindu family. So far as the legal position is concerned, there is force in the contention that a widow who is not a coparcener cannot be Karta of the family. In Commr. of Income-tax v. G. S. Mills, (AIR 1966 SC 24) it was held that under Hindu Law coparcenership is a ne-cessary qualification for the managership of a joint Hindu family. A widow is not a coparcener, she has no legal qualifications to become the manager of a Joint Hindu family. A widow of a coparcener cannot, therefore, be a karta of the joint Hindu family consisting of three widows and two minors. The facts, however, remain that Smt. Rajwanta was a member of the joint Hindu family and that the loan in question was advanced out of the joint family funds, hence though Smt. Rajwanta under the Hindu Law could not be the karta of the Joint Hindu family the loan advanced out of joint family funds was the asset and property of the joint family notwithstanding that the pro-note was executed in favour Smt. Rajwanta.

6. The question that now falls for consideration is whether on the death of Smt. Rajwanta, the plaintiff, who was a member of the joint Hindu family, could recover the joint family property, namely the debt advanced to the defendant without obtaining a succession certificate under Section 214 of the Indian Succession Act. Under the Hindu Law a joint family may consist of a single male member, his wife and unmarried daughters and the mother. In other words, it comprises of persons lineally descended from a common ancestor and includes their wives and unmarried daughters. A Hindu coparcenery is a narrower body than the joint Hindu family. It includes only those persons who acquire by birth an interest in the joint or coparcenery property, these being the sons, grandsons and great grandsons of the holder of the joint family property for the time being.

7. It is by now well settled that coparcenery under the Mitakshara School is a creature of law and cannot arise by act of parties except in so far that on adoption the adopted son becomes a coparcener with his adoptive father as regards ancestral properties of latter. The incidents of coparcenership under the Mitakshara law are: first, the lineal male descendants of a person up to the third generation, acquire on birth ownership in the ancestral properties of such person, secondly, that such descendants can at any time work out their rights by asking for partition, thirdly that till partition, each member has got ownership, extending over the entire property, conjointly with the rest; fourthly, that as a result of such co-ownership the possession and enjoyment of the properties is common, fifthly that no alienation of the property is possible unless it be for necessity, without the concurrence of the coparceners, and sixthty, that the interest of a deceased member lapses on his death to the survivors (see State Bank of India v. Ghamandi Ram, (AIR 1969 SC 1330).

8. One of the basic principles of Hindu Law is that amounts earned with joint family property are monies belonging to the joint family. As stated above, the loan was advanced out of joint family property. It was therefore impressed with the character of joint family property. Hence, on the death of the mother of the plaintiff it did not cease to be the property of that joint family, but continued to belong to the joint family. It has come in the evidence of the plaintiff that during the lifetime of Smt. Rajwanta the joint family consisted of the plaintiff, his wife and his mother Smt. Rajwanta, and that on the death of Smt. Rajwanta that joint family was constituted of the plaintiff and his wife. It cannot therefore, be said that on the demise of Smt. Rajwanta that property did not retain the character of joint family property.

8-A. In the case of G. Buddanna v. I.-T. Commissioner, Mysore, (AIR 1966 SC 1523) it was held that--

'Property of a joint family, therefore, does not cease to belong to the family merely because the family is represented by a single coparcener who possesses rights which an owner of a property may possess.'

The test to be applied in such cases is to analyse the nature of the right of the members of the undivided family, both those in being and those yet to be born, that it can be determined whether the family property can properly be described as 'joint property of the undivided family'. Applying this test in N. V. Narendranath v. Commissioner of Wealth Tax, Andhra Pradesh, (AIR 1970 SC 14) it was observed:--

'..... though in the absence ofmale issue the dividing coparcener may be properly described in a sense as the owner of the properties, that upon the adoption of a son or birth of a son to him, it would assume a different quality. It continues to be ancestral property in his hands as regards his male issue for their rights had already attached upon it and the partition only cuts off the claims of the dividing coparceners. The father and his male issue still remainjoint. The same rule would apply even when a partition had been made before the birth of the male issue or before a son is adopted, for the share which is taken at a partition by one of the coparceners is taken by him as representing his branch. Again the ownership of the di-viding coparcener is such that female members of the family may have a right to maintenance out of it and in some circumstances to a charge for maintenance upon it. (See Arunachalam's case 1957 AC 540 Attorney General of Ceylon v. A. R. Arunachalam Chettiar.) It is evident that these are the incidents which arise because the properties have been and have not been ceased to be joint family properties. It is no doubt true that there was partition between the assessee, his wife and minor daughters on the one hand and his father and brothers on the other hand. But the effect of partition did not affect the character of these properties which did not cease to be joint family properties in the hands of the appellant. Our conclusion is that when a coparcener having a wife and two minor daughters and no son receives his share of the joint family properties on partition, such property in the hands of the coparcener belongs to the Hindu undivided family of himself, his wife and minor daughters and cannot be assessed as his individual property.'

9. In the case in hand the amount of loan in question, advanced to the defendant, was not the sole property of the deceased Smt. Rajwanta. It was advanced out of the joint family funds of which both the plaintiff-respondent and the deceased Smt. Rajwanta were the members. The plaintiff did not claim the said amount from the defendant as an heir of Smt. Rajwanta but he sought to recover that joint family property as one of the surviving members of the joint family. In these circumstances the provisions of Section 214 of the Indian Succession Act were not attracted. The plaintiff-respondent was, therefore, entitled to maintain the suit.

10. No other point was urged or pressed.

11. There is no merit in this appeal. It is dismissed with costs.


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