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S. Vijayalakshmi and ors. Vs. M.G. Ganesa Iyer (Died) and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtChennai High Court
Decided On
Reported in(1984)2MLJ299
AppellantS. Vijayalakshmi and ors.
RespondentM.G. Ganesa Iyer (Died) and ors.
Cases ReferredGurupad v. Hirabai
Excerpt:
.....proposition as to the severance of the interest of the deceased coparcener and disruption in the joint family on the death of a coparcener, it is not feasible to keep alive the concept of a joint family as it stood constituted anterior to the demise of the coparcener and also continue the powers and incidents of management by the karta, so as to draw the normal presumptions regarding acquisitions by the karta during the subsistence of the said joint family. on the other hand, the court below points out that this item must have been acquired by the 1st defendant out of other sources available to him, and the ingredients of section 90 of the trusts act have not at all been demonstrated to have been satisfied. 8. considering the relationship between the parties and the limited controversy..........the 1st plaintiff is his widow and plaintiffs 2 and 3 are his daughters. that there was a joint family constituted of the first defendant, defendants 2 to 4 and the deceased sivasankaran, was not in dispute. taking into consideration the nature of the controversy raised in this appeal as well as the cross-objections filed by the fourth respondent-the fourth defendant in the suit, it is not necessary to delineate and deal with all the aspects of the case.2. the suit by the plaintiffs was one for partition and separate possession of one-fifth share in the properties set out in schedules a and b to the plaint, and for other reliefs. the court below granted the plaintiffs a preliminary decree for partition of their one-fifth share in items 1 and 2 and one-eighth share in items 6 and.....
Judgment:

S. Nainar Sundaram, J.

1. In this appeal the plaintiffs in O.S. No. 51 of 1973 on the file of the Subordinate Judge of Tiruchirapalli, are the appellants. Defendants 1 to 9 in the suit have been arrayed as respondents in this appeal. The 1st respondent died and respondents 2 to 7 have been recorded as his legal representatives. The 1st defendant was the father and defendants 2 to 4 are the sons and defendants 5 to 7 are the daughters. There was another son by name Sivasankaran and he died intestate on 10-8-1970. The 1st plaintiff is his widow and plaintiffs 2 and 3 are his daughters. That there was a joint family constituted of the first defendant, defendants 2 to 4 and the deceased Sivasankaran, was not in dispute. Taking into consideration the nature of the controversy raised in this appeal as well as the cross-objections filed by the fourth respondent-the fourth defendant in the suit, it is not necessary to delineate and deal with all the aspects of the case.

2. The suit by the plaintiffs was one for partition and separate possession of one-fifth share in the properties set out in schedules A and B to the plaint, and for other reliefs. The Court below granted the plaintiffs a preliminary decree for partition of their one-fifth share in items 1 and 2 and one-eighth share in items 6 and 7 and for Rs. 5,500/- with interest thereon in lieu of their share in item 8 of the plaint A schedule properties, and for other monetary reliefs, against defendants 2 and 4. The court below negatived the rest of the claims of the plaintiffs, including their claim for a share in item 5 of the plaint A schedule properties. This appeal is directed against the decision of the Court below in respect of this item 5 of the plaint A schedule properties. This was an item purchased by the father, the 1st defendant in Court auction on 1-9-1971, as could be seen from Ex.A-1. On the date of the purchase, the son Sivasankaran, whose heirs are the plaintiffs, was no more, he having died on 10-8-70. The result of the death of Sivasankaran was, there was disruption in the joint family and the interest of Sivasankaran in the joint family properties got determined and must be deemed to have been carved out from the entire joint family properties and it ceased to form part of the joint family properties and the separated and carved out interest of the deceased Sivasankaran in the joint family properties came to vest in the plaintiffs.

3. Mr. T.R. Rajagopalan, learned Counsel for the appellants, while impeaching the decision of the court below, when it negatived the claims of the plaintiffs for a share in item 5 of the plaint A schedule properties, does not dispute the above position, which is founded on well accepted legal propositions. It can also be taken as settled that the 1st defendant, even though he was the karta of the joint family, would not have any right to deal with the property of his deceased son Sivasankaran, namely, his share in the joint family properties, from the moment of his death, since the same ceased to be the joint family property and hence, outside the scope of the powers of the karta to deal with it. But, what the learned Counsel for the appellants would urge is that even though there was disruption in the joint family and even though the interest and the share of the deceased Sivasankaran got crystallised and separated from the joint family properties, yet, in the absence of actual division by metes and bounds and allotment of the shares to the plaintiffs the 1st defendant must be deemed to have continued in management of the properties as a joint family manager and the acquisition on 1-9-1971 of this item by the 1st defendant must be deemed to be also for the benefit of the heirs of the deceased Sivasankaran, applying the normal presumptions regarding acquisitions by the karta. Learned Counsel frankly conceded that there is no direct authority which supports this submission of his. I am of the opinion that in view of the well settled proposition as to the severance of the interest of the deceased coparcener and disruption in the joint family on the death of a coparcener, it is not feasible to keep alive the concept of a joint family as it stood constituted anterior to the demise of the coparcener and also continue the powers and incidents of management by the karta, so as to draw the normal presumptions regarding acquisitions by the karta during the subsistence of the said joint family. The proviso and Explanation 1 to Section 6 of the Hindu Succession Act (XXX of 1956) leaves no room for doubt that on the death of a coparcener there would be a destruction of the joint family as it existed prior to his death, and there could be no longer a joint family taking in the interest of the deceased coparcener which got severed on the footing of a notional partition and which interest gets devolved on the heirs of the deceased co-parcener by intestate succession, in the absence of a testament. There is no question of the karta of the erstwhile joint family continuing to exercise his powers as such, either in respect of such severed interest or for and on behalf of those upon whom it has devolved. He has no power of alienation over such severed interest. When this is the implication of the aforesaid provision, it would be absolutely unsustainable to presume that in the subsequent acquisitions by the erstwhile karta or by the surviving coparceners, the heirs of the deceased coparcener can claim a share. The extent of the assets of the deceased coparcener in the joint family properties gets determined and severed from the moment of his death and there is no scope for enlarging it by taking into account the subsequent acquisitions by the karta or the surviving coparceners. There could be no curtailment of that extent, which already got determined and equally so, there could be no enlargement of the same by taking into account subsequent acquisitions. There could be determination of the share of the deceased coparcener only in the assets of the joint family as they existed on the date of his demise. Not only the ratio of sharing, but also the assets, out of which the share has got to be carved out, got determined as on the date of the demise of the coparcener.

4. Learned Counsel for the appellants drew my attention to a judgment of the Supreme Court in Gurupad v. Hirabai : [1981]129ITR440(SC) . In my view, the proposition countenanced therein does not even indirectly support the submission of the learned Counsel but, on the other hand, militates against the same. Construing the effect of Explanation 1 to Section 6 of the Hindu Succession Act, Chandrachud, C.J., in paragraph 13 of the report, observed as follows:

In order to ascertain the share of the heirs in the property of a deceased coparcener it is necessary in the very nature of things, and as the very first step, to ascertain the share of the deceased in the coparcenary property. For, by doing that alone can one determine the extent of the claimant's share. Explanation 1 to Section 6 resorts to the simple expedient, undoubtedly fictional, that the interest of a Hindu Mitakshara coparcener 'shall be deemed to be' the 'share in the property that would have been allotted to him if a partition of that property had taken place immediately before his death. What is therefore required to be assumed is that a partition had in fact taken place between the deceased and his coparceners immediately before his death. That assumption, once made, is irrevocable. In other words, the assumption having been made once for the purpose of ascertaining the share of the deceased in the coparcenary property, one cannot go back on that assumption and ascertain the share of the heirs without reference to it. The assumption which the statute requires to be made that a partition had in fact taken place must permeate the entire process of ascertainment of the ultimate share of the heirs, through all its stages. To make the assumption at the initial stage for the limited purpose of ascertaining the share of the deceased and then to ignore it for calculating the quantum of the share of the heirs is truly to permit one's imagination to boggle. All the consequences which flow from a real partition have to be logically worked out, which means that the share of the heirs must be ascertained on the basis that they had separated from one another and had received a share in the partition which had taken place during the life-time of the deceased. . The allotment of this share is not a procedural step devised merely for the purpose of working out some other conclusion. It has to be treated and accepted as a concrete reality, something that cannot be recalled just as a share allotted to a coparcener in an actual partition cannot generally be recalled.

5. The above dictum laid down by the learned Chief Justice leaves no room for doubt that once the disruption takes place and the shares got determined as on the date of the death of the coparcener, it is no longer possible to enlarge the share of the deceased coparcener by taking into account subsequent acquisitions by the surviving coparceners or the karta. The severance, though notional, as pointed out by the learned Chief Justice, has to be treated and accepted as a concrete reality. The result is, the severance and the determination of the share cannot be reopened and the subsequent acquisitions cannot go to enlarge the share already determined. The karta of the erstwhile joint family could not act for and on behalf of the heirs of the deceased coparcener, either for the purpose of effectuating alienation of the severed interest of the deceased coparcener in the joint family properties, nor could it be stated that any acquisition made after the relevant date should be deemed to have been made for the benefit of the heirs of the deceased coparcener, merely because physical division has not taken place. The normal presumptions regarding acquisitions by the karta could not be invoked, with regard to such subsequent acquisitions by the heirs of the deceased coparcener. The simple reason is, there is an end of the joint family as between the deceased coparcener and the others on the death of the former.

6. Realising the nebulous nature of their stand, I find that the plaintiffs put forth another theory before the court below that under Section 90 of the Trusts Act, even assuming the first defendant was a co-owner in respect of the properties, he must be deemed to have acquired item 5 of the plaint A schedule properties with the help of the funds of the other co-owners and hence it must be held to be for the benefit of the plaintiffs also. There is no concrete evidence placed by the plaintiffs to show that any fund of theirs was utilised by the first defendant in the acquisition of this item. On the other hand, the court below points out that this item must have been acquired by the 1st defendant out of other sources available to him, and the ingredients of Section 90 of the Trusts Act have not at all been demonstrated to have been satisfied. My attention has not been drawn to any evidence, oral or documentary, in this connection which would go to support this case of the plaintiffs. This obliges me to discountenance the case of the appellants and the result is, the appeal fails and the same is dismissed.

7. The fourth defendant has preferred the cross-objections to the decree of the court below with reference to the award of the amounts to the plaintiffs, realised by the fourth defendant in respect of an insurance policy for Rs. 5,000/-which policy was admittedly taken in the name of Sivasankaran. The fourth defendant admittedly realised the amounts due under this insurance policy. In the written statement, the fourth defendant would claim that the policy was assigned in his favour out of affection, by his brother Sivasankaran. Realising the unsustainability of this stand, it had not been adhered to by the fourth defendant in the course of evidence and he would state that there was a misunderstanding between Sivasankaran and his wife-the first plaintiff, and further, Sivasankaran was not able to pay the premiums and hence he assigned the policy in favour of the fourth defendant for consideration. The fourth defendant claimed that he paid back to Sivasankaran the premiums already paid by Sivasankaran. The court below points out that this case of the fourth defendant has not been substantiated at all, and this has led the court below to conclude that the assignment was without consideration and was not valid. The court below further points out that in spite of the alleged assignment, the subsequent premiums were paid only by Sivasankaran. Significantly, the actual record of assignment has not been produced in the case. My attention has not been drawn to any evidence which would demonstrate that the conclusion reached by the court below is erroneous on facts this obliges me to dismiss the cross-objection also and accordingly, the same is dismissed.

8. Considering the relationship between the parties and the limited controversy that has been raised in this appeal as well as the cross-objections, I direct the parties to bear their respective costs in the appeal and the cross-objections.


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