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Venkatarayudu and ors. Vs. Sivaramakrishnayya and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1934Mad676
AppellantVenkatarayudu and ors.
RespondentSivaramakrishnayya and ors.
Cases ReferredRamalinga Annavi v. Narayan Annavi
Excerpt:
- - 7. but it is clear that possession may well be taken to have been demanded and refused from the date of the plaint......properties into seven shares and delivery of one-seventh share to the plaintiffs together with mesne profits, which modified the preliminary decree for partition passed by the subordinate judge of guntur in o.s. no. 55 of 1922. the facts necessary for the disposal of this second appeal are briefly these. the suit properties belong to a joint hindu family consisting of defendants 2 to 9. defendant 2 is the father and defendants 3 to 8 are his sons. defendant 9 is the son of defendant 3. in i.p. no. 14 of 1915 on the file of the district court of guntur, defendant 3 was adjudicated an insolvent and defendant 10 was appointed the official receiver. in the course of his administration of the insolvent's estate, defendant 10 sold by public auction the one-seventh share of defendants 3 and.....
Judgment:

Madhavan Nair, J.

1. This second appeal by defendants 2 and 4 to 9 is against the decree of the District Judge of Guntur in Appeals Nos. 50 and 77 of 1925 directing the partition of the suit properties into seven shares and delivery of one-seventh share to the plaintiffs together with mesne profits, which modified the preliminary decree for partition passed by the Subordinate Judge of Guntur in O.S. No. 55 of 1922. The facts necessary for the disposal of this second appeal are briefly these. The suit properties belong to a Joint Hindu family consisting of defendants 2 to 9. Defendant 2 is the father and defendants 3 to 8 are his sons. Defendant 9 is the son of defendant 3. In I.P. No. 14 of 1915 on the file of the District Court of Guntur, defendant 3 was adjudicated an insolvent and defendant 10 was appointed the Official Receiver. In the course of his administration of the insolvent's estate, defendant 10 sold by public auction the one-seventh share of defendants 3 and 9 in the suit properties. Plaintiff 1 purchased one-seventh share in certain specified lots under the sale deed executed by the Official Receiver, Ex. A, dated 11th February 1919. The one-seventh share in the other lots was sold to defendant 1, the son in law defendant 2, under the sale deed Ex. B dated 12th February 1919. Plaintiff 2 is the son of plaintiff 1. Plaintiff' 1 conveyed a portion of his properties to plaintiff 3 by a registered sale deed dated 2nd October 1920.

2. The suit out of which this second appeal arises was instituted by the plaintiff's for partition of the suit properties into seven equal shares and delivery to them of the one-seventh share purchased by them together with mesne profits. Issues 3 and 5 in the suit, with the decision of which we are mainly concerned, in the second appeal are as follows: Issue 3. - Whether the plaintiffs are entitled to any, and, if so, to what mesne profits against the defendants 2 and 4 to 8? Issue 5. - Whether the defendants 7 and 8 are entitled to have provision made out of the joint estate for the expenses of their marriage. With respect to issue 3 plaintiffs contended that they are entitled to get mesne profits from the date of their purchase of the share of the properties claimed by them, i.e. from 11th February 1919, while the defendants contended that they were entitled to mesne profits only from the date of the preliminary decree for partition, i.e., from 12th November 1924. In Mahjaraja of Bobbili v. Venkataramanjulu Naidu 1915 Mad. 453 it was held, disapproving some previous decisions, that a purchaser of an undivided share of a member of a joint Hindu family does not thereby become a tenant-in-common with the other members and hence he is not entitled to any mesne profits in respect of his share for the period between the date of his purchase and the date of his suit for partition. Belying mainly on this decision the learned Subordinate Judge held that the plaintiffs were entitled to claim mesne profits from the date of the suit. It will be observed that he disallowed the contentions of both the plaintiffs and the defendants on this point.

3. With respect to issue 5 it was contended by the defendants that the marriage expenses of defendants 7 and 8 should be provided for before the properties are equally partitioned. The plaintiffs contended that no such provisions out of the joint family funds could be made. In Gopalan v. Venkataraghavalu 1915 Mad. 1027 it was held following Srinivasa Iyengar v. Thiruvengadathiyangar 1914 Mad. 226 and dissenting from Narayana Annavi v. Ramalinga Annavi 1917 Mad 477, that in partition decrees provision should be made for the marriage expenses of the unmarried members of the family. Following this decision the learned Subordinate Judge held that provision has to be made out of the joint family estate for the marriage of defendants 7 and 8. In the result the Subordinate Judge passed a decree directing the delivery of one-seventh share to the plaintiffs together with mesne profits from the date of the plaint making a portion of the marriage expenses a charge on the properties allotted to them. Against the above decree both the plaintiffs and the defendants preferred appeals to the District Court. On the question of mesne profits raised in issue 3 the learned District Judge held that the plaintiffs were entitled to claim mesne profits from the date when they purchased the suit properties, he being of opinion that the filing of the insolvency petition must be taken to involve a declaration of severance of the joint family status and that in consequence the vendee was a tenant-in-common from the date of the sale and is entitled to profits from that date. On the question of marriage expenses raised in issue 5 the learned District Judge held relying on Ramalinga Annavi v. Narayana Annvi 1922 P.C. 201 that the unmarried members were not entitled to have any provision made for the expenses of their marriage. In his view this decision superseded the decisions in Srinivasa Iyengar v. Thiruvengadathiyengar 1914 Mad. 1914 Mad. 226 and Gopalan v. Venkataraghavalu 1915 Mad. 1927. In the light of the above findings the decree of the Subordinate Judge was modified by the District Judge. It will be observed that on both the questions at issue between the parties the District Judge accepted in toto the contention of the plaintiffs.

4. In second appeal Mr. Raghava Rao, argues that the decision of the learned District Judge is wrong on both the questions and that he should have held that the plaintiffs are entitled to mesne profits only from the date of the preliminary decree and that their properties should be charged with the payment of the marriage expenses of defendants 7 and 8.

5. On the first point, namely, that relating to mesne profits, we have no doubt that the learned District Judge's decision that the filing of an insolvency petition brings about a severance of joint family status cannot be upheld. No authority in support of the position is mentioned in the lower Court's judgment, nor has any been quoted before us by the learned Counsel justifying the conclusion. On principle, we cannot see how the filing of an application for insolvency can be taken to involve a declaration of severance of the joint family status. The immediate object of a petition in insolvency by a debtor is to get exemption from arrest; and it must be obvious that a stranger cannot by any conduct of his, enforce a severance of the joint family status. To hold that the filing of an insolvency application by a member of a joint Hindu family amounts to an unequivocal and unambiguous declaration to sever from the family, is to state a proposition supported neither by authority nor by principle. No doubt the filing of a petition in insolvency followed by adjudication gives certain legal rights to the Official Receiver with respect to the share of the property belonging to the insolvent. His share vests in the Official Receiver and the disposing power of the insolvent with respect to his son's share for paying debts not contracted for an immoral purpose also vests in him. But this result does not bring about any severance in the joint family status of the insolvent. We must hold that neither the filing of an insolvency petition nor the adjudication of the applicant as an insolvent can sever the joint family status and that in consequence we cannot hold that the vendee was a tenant-in-common from the date of the sale and is entitled to profits from that date.

6. In our Court it has been held that the Official Assignee is entitled on the insolvency of any coparcener to joint possession with the other coparceners : see Official Assignee of Madras v. Ramachandra Iyer 1923 Mad. 55 and Venkatarama v. Chokkiar 1928 Mad. 531 and also Mulla's Hindu Law, p. 311. In the latter of the two oases just mentioned, namely Venkatarama v. Chokkiar 1928 Mad. 531, the same privilege of joint possession with respect to an insolvent's share is accorded to an alienee from the Official Receiver also. It is clear law that one coparcener entitled to joint possession with another coparcener cannot claim mesne profits unless he shows that he has been excluded from enjoyment of the properties by the other coparcener. It follows therefore that unless it is shown that on the date of the sale by the Official Receiver possession of the properties was demanded by the vendee and refused by the appellants it cannot be held that the plaintiffs are entitled to mesne profits from the date of the sale. In this case the question of exclusion was not raised as a specific point in issue and no evidence has been adduced on it, though there is a statement in the plaint to the effect that:

After the purchase of the properties, in spite of repeated demands the defendants have not chosen to effect a division of the properties or to put the plaintiffs in possession etc.

7. But it is clear that possession may well be taken to have been demanded and refused from the date of the plaint. We would therefore hold, agreeing with the Subordinate Judge though on a different ground, that the plaintiffs are entitled to mesne profits from the contesting defendants from the date of plaint. The present case being one of an alienation by the Official Receiver who is the representative of the insolvent, the applicability of Maharaja of Bobbili v. Venkataramanjulu Naidu 1915 Mad. 453 relied on by the learned Subordinate Judge, where it was held that

a purchaser of an undivided share of a joint Hindu family does not thereby become a tenant-in-common with the other members and hence he is not entitled to mesne profits in respect of his share from the date of his purchase,

does not arise for consideration; and it is conceded that the argument; that the purchaser is entitled to mesne profits only from the date of the preliminary decree for partition cannot be pressed, the Official Assignee and the purchaser from him of the insolvent's property being held to be entitled to joint possession along with the coparcener. The next point relates to the question whether provision should be made in the decree for the marriage expenses of two of the brothers of the insolvent, namely defendants 7 and 8. In summarising the conclusions arrived at by the lower Courts, the decisions bearing on the question have already been mentioned. The decisions in Srinivasa Iyengar v. Thiruvengadathiyengar 1914 Mad. 226 and Gopalan v. Venkataraghavalu 1915 Mad. 1027 support the contention of the appellants that such provision should be made before the properties are finally partitioned. In Narayana Annavi v. Ramalinga Annavi 1917 Mad. 477, which refused to follow Srinivasa Iyengar v. Thiruvengadathiyengar 1914 Mad. 226, Sankaran Nair and Oldfield, JJ., held that an unmarried coparcener is not entitled to have an anticipatory provision made for the expenses of his future marriage at partition; but they allowed the claim for the expenses of the marriage that took place before the decree in the first Court on the ground that

joint family status was not dissevered until the decree for partition and that the joint family continued until then.

8. This decision was taken up in appeal to the Privy Council and the judgment of their Lordships of the Judicial Committee is reported in Ramalinga Annavi v. Narayan Annavi 1922 P.C. 201. On the point under consideration their Lordships, following Girja Bai v. Sadashiv Dhundiraj 1916 P.C. 104, which did not exist when Narayana Annavi v. Ramalinga Annavi 1917 Mad. 477 was decided, held that the institution of a suit for partition by a member of a joint Hindu family effects a severance of the joint status of the family and a member of the family who is then unmarried, is not entitled to have a provision made in the partition for his marriage expenses although he marries before the decree in the suit is made. According to this decision the obligation to provide for future marriages ceases on severance of the joint family status.

9. This decision is relied on by the plaintiffs-respondents in support of their contention. The appellants argue that the decision of the Privy Council does not supersede the decisions in Srinivasa Iyengar v. Thiruvengadathiyengar 1914 Mad. 226 and Gopalan v. Venkataraghavalu 1915 Mad. 1027 and further that the Privy Council decision is inapplicable to the present case, inasmuch as the case before the Judicial Committee dealt with the question of the expenses of marriage in a suit for partition instituted by some of the coparceners against the remaining members of the family; whereas the present suit is not one instituted, by a coparcener. In our opinion both the arguments should be overruled. Though the two decisions in Srinivasa Iyengar v. Thiruvengadathiyengar 1914 Mad. 226 and Gopalan v. Venkataraghavalu 1915 Mad. 1027 are not actually referred to in the judgment of the Privy Council, it is clear from the arguments that both the decisions ware brought to the notice of their Lordships and then they enunciated the correct principle to be applied to cases of this kind, that principle being this, that after severance of joint family status had been effected no obligation rests on the joint family in respect of the future marriage of a coparcener who was unmarried at the time of the severance.

10. This being the correct principle to be applied, we think that the previous decisions of this Court in Srinivasa Iyengar v. Thiruvengadathiyengar 1914 Mad. 226 and Gopalan v. Venkataraghavalu 1915 Mad. 1027 should be considered to be overruled by the Privy Council decision in Ramalinga Annavi v. Narayan Annavi 1922 P.C. 201, with respect to the point under consideration. We are also of the opinion that the principle of the Privy Council decision would apply to the present case also, inasmuch as the Official Receiver as the representative of the insolvent coparcener occupies the position of a co-parcener himself, and the alienee from him stands in his shoes and may therefore be said to be in the position of a co-parcener. We must therefore bold, agreeing with the learned District Judge, that provision should riot have been made in the decree for the marriages of defendants 7 and 8. In the result the lower Court's decree will be modified in the light of the above findings. The parties will pay and receive proportionate costs.


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