1. The second defendant in 0. S. No. 584 of 1972, on the file of the District Munsif of Thanjavur is the appellant herein.
2. The suit 0. S. No. 584 of 1972 was filed by the first respondent herein for partition and separate possession of his one-third share in the suit property. The plaint case is that the suit property, which is a house, was settled on the plaintiff and defendants 1 and 2, who are all the sons of one Sivakolundu and, therefore, the plaintiff is entitled to claim an one-third share therein.
3. The suit was resisted by the second defendant alone. His case was that the first defendant having relinquished his one-third share in his favour, he is entitled to get two-thirds share in the suit property, His further claim was that he had made considerable improvements to the suit property, and, therefore, even if the plaintiff is granted a decree for his one-third share, sufficient provision has, to be made for the cost of the said improvements. He also contended that three of their sisters having been married by him by borrowing amounts from various sources, the other two brothers have to contribute their respective one-third share towards the said borrowings.
4. The trial Court held that the plea of the second defendant that the first defendant had relinquished his interest in the suit property has not been established and that the plaintiff and the first defendant have to contribute towards the borrowings made by the second defendant for the marriages of their sisters. In that view the trial court passed a preliminary decree for partition of the plaintiff's one-third share in the suit property and directed the plaintiff and the first defendant to pay a sum of Rs. 1216 each to the second defendant towards their share of the debts borrowed for the purpose of meeting the marriage expenses of their sisters.
5. The second defendant filed an appeal questioning the decree of the trial court in so far as it rejected his plea based on the relinquishment of the first defendant's one-third share in his favour. The plaintiff and the first defendant filed cross-objections insofar as the trial court has directed them to pay a sum of Rs. 1,216 each towards the debts said to have been incurred by the second defendant. Dealing with that appeal and the cross objections the lower appellate court has held that the relinquishment has not been duly proved, that though it has been proved by the second defendant that he has expended for the marriages of their sisters, the plaintiff and the first defendant are not liable to contribute their share as they are not in possession of any joint family property and that, in any event, the second defendant not having made a claim for contribution towards the marriage expenses of their sisters within three years, his claim should be taken to have been barred by time. In this view, the lower appellate court has rejected, the appeal of the second defendant and allowed the cross-objections of the plaintiff and the, first defendant.
6. In this second appeal, though the learned counsel for the appellant contends that the evidence on record is sufficient to - establish the appellant's plea of relinquishment, I do not see any justification for interference with the concurrent findings of both the courts below on that question. Both the courts below have specifically held, after analysing the entire evidence, both oral and documentary, that the plea of relinquishment has not been established by the second defendant and, therefore, the second defendant is not entitled to get the share of the first defendant on the basis of the said alleged relinquishment.
7. The learned counsel for the appellant then contends that, in any event, the lower appellate court is not justified in setting aside that portion of the decree of the trial court which directed the plaintiff and the first defendant to pay their share of the marriage expenses of their sisters, The lower appellate court, as already stated, has given two reasons for reversing the decision of the trial court on this point. It has held that unless the plaintiff and the first defendant are found to be in possession of joint family property, they are not bound to contribute for the marriage expenses of the sisters and that, in any event, the claim for marriage expenses is barred by time.
8. The question whether there is any legal obligation on the part of the plaintiff and the first defendant to contribute for the marriage expenses of their sisters will depend upon the facts whether the plaintiff and the first defendant are in possession of any joint family property. According to the appellant, the house which all the three brothers got under Ex. A. 1, from their father Sivakolundu is a joint family property and as all the three brothers have a share in the joint family property, the plaintiff and the first defendant have to contribute for the marriage expenses. The lower appellate court, while dealing with this question, held that the house was the self acquired property of Sivakolundu and the property having been got by the three sons under a settlement deed, Ex. A.1, from their father, their share in the house property cannot be said to be a joint fami1V property.
9. Though the learned counsel for the appellant contends that there is no issue as to whether the house property settled on the three sons by Sivakolundu is ancestral or self-acquired, there are two circumstances which clearly indicate that the property is the self-acquired property of Sivakolundu and it cannot be said to have a joint family character in the hands of the sons. Though there is no issue on the question as to whether the house property is the self acquired property of Sivakolundu, DW 4, the plaintiff, DW 6, the second defendant, and DW 7 the first defendant, have all admitted in their evidence that the suit property is the self-acquired property of their father. Apart from this admission on the part of all the parties, the settlement deed Ex- A. 1, contains a recital by Sivakolundu that the property settled there under is his own self-acquisition. In the face of this admitted case of the parties that the house property, which is the subject matter of the suit, is the self-acquired property of Sivakolundu, no issue is called for in view of the recital in Ex, A. 1, and the evidence of the plaintiff and defendants I and 2, the suit property should be taken to have been the self-acquired property of Sivakolundu and not the coparcenary property and his sons having got the property under a settlement deed and not by inheritance, they cannot be said to be in possession of it as a joint family.
10. The learned counsel for the appellant, however, contends that as the gift is to all the sons in equal shares, the intention of the father was that all the sons should take the property in the same way as on intestacy and, therefore, the donees would be taking the property as joint family property.
11. The question whether the property received by gift from the father is ancestral or not in the sons hands will arise only as between that son and his son and not as between that son and his brothers as against whom it will only be separate property as has been he ld in Pankajammal v. Parthasarathi, AIR 1946 Mad 99. We are here concerned with a dispute between brothers, and, therefore, the question whether the property got under Ex. A. I by the plaintiff and the first defendant is joint family property in their hands as against their sons. The question then is whether the plaintiff and the first defendant, who are not in possession of my joint family or coparcenary property, are liable to contribute for the marriage expenses of their sisters.
12. Under S. 20 of the Hindu Adoptions and Maintenance Act, 1956, a Hindu is under a legal obligation to maintain his or her children so long as they are minors and in the case of daughters to incur the reasonable expenses of and incidental to their marriage. The said obligation exists, whether there is joint family property or not. Under S. 22 of the Act, the heirs of a deceased Hindu are bound to maintain the dependants of the deceased out of the estate inherited by them from the deceased. Thus, the appellant's brother's claim for contribution for the marriage expenses of the sisters from his other brothers cannot be sustained under these provisions as the primary liability is that of the father and the sons have not inherited any estate from the father.
13. Even if the law prior to the enactment of the Hindu Adoptions and Maintenance Act, 1956 were to apply the appellant cannot succeed. it is, no doubt, true that under the Hindu Law a daughter of a Hindu father is entitled to be maintained and married from the father's estate. In fact, in a Hindu family the expenses of marriage of an unmarried daughter is a legal liability of the family and the sum spent for the marriage must be provided from family property. Thus, it is liability on the coparcenary itself. In case the expenses of marriage have been met by somebody else, that person is entitled to get reimbursement from the joint family estate.
14. In this case the actual expenses for the marriage have been incurred by one of the brothers and so he is entitled to recover the same from the paternal estate, whoever has inherited it. In Bapayya v. Rukhamma (1909) 19 MLJ 666, it has been laid down by this Court that: -
'The daughter of a Hindu is entitled to be paid her marriage expenses out of the father's estate in the hands of her stepmother in the same way as she is entitled to be paid her maintenance, and this rule is not the less applicable to Sudras than it is to Brahmins.'
In Kameswara Sastri v. Veeracharlu, ILR (1911) Mad 422, Krishnaswami Aiyar, J., has referred to the various texts on Hindu Law and ultimately came to the conclusion that the right to claim maintenance or marriage expenses by a daughter of a Hindu father can be enforced primarily against the father and the remedy by way of restitution of moneys paid and expenses incurred in connection with the marriage of a daughter against any other person will be available only if such person is in possession of any joint family property.
15. Ramesam, J., in Subbayya v. Anandaramayva, ILR (1930) Mad 84: AIR 1929 Mad 586 had observed-
'In these cases it does not appear that the father was a member of the joint family or had ancestral property. The cases were discussed on the footing of the general obligation of a father to maintain or marry his daughter and it was held that the father was not under an obligation to marry his daughter. On the other hand, it may be said that at least among Brahmins and Vaisyas with whom pre-puberty marriage is compulsory as a religious injunction, the father is legally bound to marry his daughter.'
16. In Rajagopala Iyer v. Venktarama Iyer, (1947) 2 MLJ 37: AIR 1947 PC 122 the Judicial Committee had observed that in the case of an unmarried daughter: -
'her right to maintenance and marriage expenses out of joint family property is in lieu of a share on partition', a provision should accordingly be made for her marriage expenses in the decree for partition'.
This decision proceeds on the basis that an unmarried daughter's right to get maintenance and marriage expenses is in lieu of her share in the joint family property. Therefore the right to be maintained and to claim marriage expenses by a daughter in a Hindu family will arise only if the joint family has got properties.
17. In Sadhu Laxmi Sundaramma v. Sadhu Suryanarayana : AIR1950Mad274 Viswanatha Sastri J. has taken the view that a Hindu father is under no legal obligation to get his daughter married and a wife, who has expended money on their daughter's marriage, is not entitled to recover it from her husband, as the obligation to defray the expenses of the marriages of his sons and daughters is cast by the Hindu Law upon a father only if there is any joint family property in his hands and not in other cases. In support of this view, the learned Judge has referred to an earlier Division Bench decision of this Court in Sundariammal v ' Subramania Iyer, ILR (1903) Mad 505, wherein it has been held that a Hindu father was under no legal obligation to get his daughter married and that a wife who expended money on her daughter's marriage was not entitled to recover it from her husband, who had not got any joint family property in his hands.
18. In Srinivasa Iyengar v. Thiruvengadatha Iyengar, ILR (1915) Mad 556: AIR 1914 Mad 226) it has been held -
'Provision ought to be made at partition not only for the Upanayanam of brothers and marriages of sisters but also for the marriages of brothers when have not been married and such provision ought to be made whether the property to be divided is merely self acquired property of the father or ancestral property'.
In this view, of the matter the lower appellate Court seems to have come to the right conclusion that since the plain tiff and the first defendant are not in possession of any joint family property they are not bound to reimburse their share of the expenses of the marriage of their sisters, which is stated to have been incurred by the second defendant. In this view it is unnecessary to go into the question whether the claim for con tribution is barred by limitation or not.
19. The second appeal therefore fails and is dismissed. However there will be no order as to costs.
20. Appeal dismissed.