Ratnavel Pandian, J.
1. The above two appeals arise out of the judgment rendered by the Subordinate Judge of Cuddalore in 0. S. No. 242 of 1969, the former appeal having been preferred by the plaintiff and the latter by the first defendant in the suit.
2. The plaintiff filed the suit in forma pauperis seeking partition and separate possession of her 115 share or 116 shaze; or 1/10 share or 1/12 share in the plaint schedule properties and recovery of past and future mesne profits in respbet of her sham and. for costs. Her case as pleaded in the plaint is as follows: One Swaminatha Mudaliar, who is the common ancestor in this case, had two sons viz., defendants 1 and 5 in the Buit, and four daughters. of whom the plaintiff is one. Swaminatha Mudaliar owned extensive properties. The fifth defendant Balasubramania Mudaliar got some properties from his father and went out of the family in 1929 itself after executing a release deed dated 12th Aug., 1929 in favour of his father and his brother, the first defendant. The properties so got by the fifth defendant have been described in the A schedule to the said release deed. 1-hereafter, Swaminatha Mudaliar continued to live with the plaintiff and defendants I to 4 and acquired other properties and also the properties given to the fifth defendant. Swaminatha Mudahar died intestate on 23rd June, 1957 possessed of all the properties consisting of (1) movables, (2) immoveables and (3) stock-in-trade, which are more particularly described in Schedules I to 3 to the plaint, Under the Hindu Law, as governed by the Hindu Succession Act 1936, the plaintiff and defendants I to 4 are each entitled to 1/5 share in all the properties. If it is found by the Court that the fifth defendant is also entitled to a share, then each of them would be entitled to a 1/6th share. According to the plaintiff, all the, properties set out in the plaint were the separate -properties of Swaminatha Mudaliar. The plaintiff sent a notice under Ex. A-2 dated 2nd June, 1969 to the first defendant, demanding division of the properties and allotment of 115 share to the plaintiff. Though the first defendant received Ex A-2 on 3rd June, 1969 under the acknowledgment Exhibit A-3, he has not chosen. to give any reply so far. If it is the case of the first defendant that all the properties are joint family properties, then, on the death & Swaminatha Mudaliar, the first' defendant would be entitled to a half share in all the properties while the other half which belonged to Swaminatha Mudaliar should be taken by the plaintiff and defendants I to 4 or defendants I to 5. Swarninatha Mudaliar stayed at Tindivanam till his death, where he was carrying, on his business in iron materials. The plaintiff has been staying 'with her husband and children at Cuddalore, while defendants 2 to 4 were staying in different places with their husbands and children. Having regard to the relationship between the parties and also the confidence reposed on the first defendant, the first defendant was allowed to be in possession and management of all the properties, though Ws possession had been and had continued to be for and on behalf of the parties, viz., the plaintiff and defendants I to 4. It was only recently discovered that the first defendants attitude towards his sisters is neither fair nor honest. Hence, it has become necessary for the plaintiff to get her share in all the properties divided and allotted. Hence the suit. She has also claimed past and future mesne profits in respect of her share.
3. The second defendant filed a written statement, almost adopting the plea of the plaintiff and offering to file a separate application for permission to claim relief as a pauper in this suit. but she does not seem to have filed any such application.
4. Defendants 3 to 5 remained ex parte, and none of them had filed any written statement.
5. The only contesting first defendant resisted the claim of the plaintiff on several grounds, inter alia, contending that his paternal grandfather Armachala Madaliar and his brothers acquired properties by joint labour with the help of ancestral nucleus and treated those properties as joint family properties, that it is incorrect to state that Swaminatha Mudaliar owned extensive properties as set out in the plaint as his separate properties, but that there was a partition subsequently among the members of the family, where-under Swaminatha Mudaliar got Item 1 and part of Item 2 in the plaint Schedule I and some items of out standings towards his share. Thereafter, Swaminatha Mudaliar, with the help of the joint family resources, started the business in hardware, treating the same as a joint family concern. The properties of the family, owned and subsequently acquired, and the business, were all treated and dealt with as joint family properties by defendants 1 and 5 and their father. The fifth defendant, on executing the, release deed, separated himself from the joint family and he was given Items 7 to 11 of the plaint I schedule, ornaments worth Rs. 200/- and three items of decree debt amounting to Rs. 120/-. These items of properties are shown as Schedule A in the release deed. After the fifth defendant left the family, this defendant and his father were in joint enjoyment of the rest of its joint family properties mentioned in Schedules B and C to the release deed. Of the properties given to the fifth defendant the fifth defendant alienated Item I I of Schedule I to the plaint in or about 1942 to one Ammakannu Ammal of Avarapakkam, who has been in possession and enjoyment of the said properties thenceforth. This item has been wrongfully included in the plaint as divisible since no one has got any right over it after the allotment of the said property to the fifth defendant. Item 10 of Schedule I to the plaint was sold in a revenue sale for arrears of kist payable by the first defendant and the said item of property was purchased by Swaminatba Mudaliar in that revertue sale, and later sold by Swarninatha Mudaliar himself to a third party. Therefore, this item also is not available for partition. Subsequent to the partition and the release deed, there was an oral exchange of properties between the fifth defendant on the- one side and Swaminatha Mudaliar and this defendant on the other, i n1945, where under the suit Item I of Schedule I was given to the fifth defendant in exchange for Items 7 to 9 of Schedule 1. In pursuance of that exchange, the fifth .defendant had been in possession and enjoyment of Items 7 to 9. Item 5 of plaint Schedule I was purchased by this defendant in his name for his own benefit with the funds provided by his wife's brother A. Balasundara Mudaliar of Chintadripet. Swaminatha Mudaliar had no interest in it 'and in fact, the family during the relevant period had not been possessed with any means to acquire it, but on the other hand, the family was heavily indebted. Therefore, this item is not a joint family property so as to be included in the divisible items. The plaintiff has included in Schedule 11 of the plaint, some of the non-existent items and some items belonging 'to this defendant's wife also along with some items really belonging to the family and has exaggerated the value of the items. Items 1, 2. 4 to 8, 10, 12, 14, 21, 22 and 31 to 3i do not exist. Apart from the above non-existing items of properties, the first defendant! has listed out in Paragraph 9 of his written statement, some items of jewels, vessel,-,-, furniture etc.. as exclusively belonging to his wife. and according to him, only a few items of properties belong to the family and the plaintiff has exaggerated even the value of the said items. There is no amount in the Bank as deposit and available for partition. The value of the stock-in-trade is also exaggerated. The value of stock as on 31st March, 1969 as submitted to the Sales Tax Department was only RS.- 10,900/-. Some materials have been sold subsequently and therefore, the value of the stock as on the date of suit. can never be more than Rs. 5,0001- to 6,000/-. There is no amount available as per Item 2 of Sch. 111. Swaminatha Wdaliar borrowed Rs. 7,000/from one E. L. Navaneetha Chettiar of Tindivanam, and deposited the same for becoming a member of the South India Iron and Hardware Merchants' Association. Later this amount was withdrawn and repaid to the le7nder., Now, heavy amounts are due to Navaneetha Chettiar and others as set out in Schedule A to this defendant's written statement. The plaintiff has exaggerated the value of Items 3 to 6 of Schedule I. Item 1 thereof did not belong to the joint family since it was obtained only by way of an exchange. Item 2 would be worth only Rs. 4,000/- and not more.' The defendant's father was residing in Item 4 of Schedule I with his family members along with this defendant and this defendant continues to reside therein with his family. There is no income from it. This item is not partible at present as this defendant does not choose to divide that item, among the heirs. Items 3, 5 and 6 are in a dilapidated condition and hence uninhabitable without yielding any. income. Items 7 to 9, though classified as wet, have become for the past 15 years, uncultivable due to lack of sufficient water for cultivation. They would not be worth even Rs. 7,500/-. Hence, the valuation for the relief of the claim of mesne profits is exaggerated. The plaintiff is not entitled to claim mesne profits for any period prior to 3rd June, 1969. The plaintiff is not entitled to claim 115 or 1/6 share in the suit properties. The plaintiff is entitled to claim, if at all 1/12 share only and consequently the valuation of her share as 1/5th share is unsustainable. Since the family was indebted during the lifetime of Swaminatha Mudaliar and continues to be indebted, such debts having been incurred for the family business, the plaintiff is also liable to pay her share of debts detailed in Schedule A. The suit, if properly valued, is not entertainable in this Court.
On the above pleadings of the parties, the following issues were set for trial:-
(1) To I what share plaintiff is entitled in the suit properties?
(2) Whether the properties in Schedule I were treated as joint family -properties as contended by Ist defendant?
(3) Whether Items, 10 and 11 of Schedule I are still available for partition ?
(4) Whether the oral exchange set up by lst defendant in para. 7 of his written statement is true?
(5) Whether Item 5 -of Schedule I is liable to be divided ?
(6) Whether all the items in Schedule H exist and if so, what is their value?
(7) What is the value of Item I of Schedule III ?
(8) Whether Item 2 of Schedule III exists?
(9) Whether the items in Schedule I have been properly valued ?
(10) Whether this Court has no jurisdiction ?
(11) Whether the debts mentioned in Schedule A to the written Statement of lst defendant -are true and whether the plaintiff is liable to pay her share?
(12) Whether Item 4 of Schedule I is liable to be divided?
(13) Whether plaintiff is entitled to any past profits; if so, to what amount and from what date ?
(14) To what relief, if any, is the plaintiff entitled ?
6. The learned trial Judge, on an overall consideration of the evidence of the plaintiff as P. W. 1 and that of the first defendant as D. W. 1 and the documents Exs. A-1 to A-3 and B-I to B-16 found under Issues I to 6 that the properties were treated as joint family properties, that Items 10 and 11 of Schedule I are not available for partition, that the oral exchange set up by the first defendant is true, that Item 5 of Schedule I is not liable to bi partitioned and that all the items except those admitted by the first defendant in his written statement with the value thereof, do not exist, that the suit items are joint family properties and therefore, in view of the release deed executed by the fifth defendant, he is not entitled to any share in the joint family properties and that the first defendant is entitled to a half share plus 1/10 share and the plaintiff is entitled to 1/10 share. Under Issues 7 and 8, the Court below has relegated the value of Items I and 2 of Schedule III to be determined in the final decree stage.. As no argument was advanced on the question of jurisdiction,of the Court, it was held on Issue No. 10 that the Court had jurisdiction to try the suit. , Coming to issue No. 12, the finding on which is mainly challenged by the plaintiff in her appeal, the Court below has found that the first defendant has got the option to have division or to postpone the division of the house mentioned as Item No. 4 of Schedule I to the plaint, since it is a joint family dwelling house. As regards mesne profits, the Court below has held on Issue No. 13 that the plaintiff is entitled to mesne profits from 3rd June, 1969 Le, the date of receipt of Ex. A-2 notice by the first defendant. In view of the above findings, the Court below passed a preliminary decree with costs for partition and separate possession of 1/10 share in Items 2, 3 and 6 to 9 only of plaint Schedule I and Items 16, 17, 19, 20, 23 24, 26, 28 and 30 of Schedule H to the plaint, which were admitted by the first defendant as belonging to the joint family, and 1/10th share in the family business mentioned as Item I of plaint Schedule I. The court-fee due to Government was directed to be paid by the first defendant.
7. Feeling aggrieved by the finding of the Court below on Issues 5 and 12, excluding Item 5 from the joint family properties and finding that the house Item 4 is liable to be divided only at the option of the first defendant, the plaintiff has preferred A. S. 598 of 1974. The first defendant has preferred A. S. 310 of 1977 challenging the judgment and decree of the Court below to the extent to which findings have been rendered by the Court below in favour of the plaintiff. He has also filed C. M. P. 2922/79 seeking the permission of this Court to raise additional grounds in A. S. 310 of 1977.
8. During the pendency of these appeals, the third defendant Rajivibai Ammal (third respondent in both the appeals) died and' hence, in A. S. 310 of 1977 preferred by the first defendant, himself, the plaintiff and defendants 2 and 4 were recorded as her legal representatives as per order in C. M. P. No. 5495/77 dated 25th August, 1977. Subsequently, the second defendant Thillainayagain Ammal also died on 2nd March, 1978 and thereafter, her legal representatives, viz., respondents 5 to 8 in A. S. No. 3 10 of 1977, were brought on record as per order in C. M. P. No. 3982 of 1978 dated 30th July, 1979.
9. The appellant in A. S. No. 598 of 1974 filed C. M. P. No. 6795 of 1978 and brought the legal representatives of Thillainayagam Animal (second defendant) as respondents 6 .to 9 to the appeal. The plaintiff has not taken any steps to implead the legal representatives of Rajivibai Ammal in her Appeal A. S. 598 of 1974, since all the legal representative of the deceased are already on record.
10. The fifth defendant viz, Balasubramaniam Mudaliar who had no interest in the litigation and was added only as a pro forma party to the suit and who is die fifth respondent in A. S. No- 598 of 1974, is reported to have died an 27th March, 1977. Learned Counsel for the appellant-plaintiff at this stage, relying on the provisions of O- 22 R 4 (4), C. P. C, seeks a direction from this Court exempting the appellant/plaintiff from bringing on record the legal representatives of the fifth defendant in this appeal as the defendant had not chosen to file any written statement and had also remained ex parte. He pointed out that in the present appeal also, the fifth defendant, despite the receipt of the notice of this appeal, had not chosen t0 make his appearance and state his case before this Court.
11. Rule 4, sub-rule (4) of O.22, C.P.C. as it now stands after the amendment by Act 104 of 1976, reads thus:
' The Court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representative of any such defendant who has failed to file his written statement or who, having filed it, has failed to appear and contest the suit at the hearing; and judgment may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant, and shall have the same force and effect as if it has been pronounced before death took place.'
Even before the civil Procedure Code was amended by Act 104 of 1976, there was already a provision similar to the one under the present sub-rule(4), so far as TamilNadu was concerned inserted by the High Court amendment of 1927, which reads as follows:
'The Court whenever it sees fit, may exempt the plaintiff from the necessity to substitute the legal representative of any such defendant who has been declared ex parte or who has failed to file his written statement or who having filed it, has failed to appear and contest at the hearing; and the judgment may in such case be pronounced against the said defendant, and shall have the same force and effect as if it has been pronounced before death took place.'
Thus it can be seen that except for the slight verification in one place viz., the words 'who has been declared ex parte' being omitted in the present sub-rule, there is no material change at all in sub-rule (4) even after the amendment. Therefore, the case-law on the interpretation of sub-rule(4) as it stood before the 1976 amendment would be quite relevant for the discussion of the provision under the present sub-rule (4) also.
12. A Division Bench of the court in Lakshmanan v. Chidambaram, ( : AIR1935Mad236 ) has pointed out thus : (Vide head-note);
' Order 22, Rule 4(4), is applicable to appeals also as provided by Rule 11. The power which the rule gives to the court to grant exemption is of course only discretionary and probably it rarely will be exercised in the case of a single respondent. But, where there are several respondents whose interests are common, and some contest and others do not cater appearance, it is fairly safe to assume that the defence of the decree has been left in the hands of some on behalf of all. Hence, where on the death of one of the respondents, the appellant failed to bring on record his jurisdiction to exempt his being brought on record and the appellate decree has the same force and effect as if it had been passed before he died.'
The Andhra Pradesh High Court, in Jag Mohan v. Ramaiah, AIR 1962 Andh 165, has pointed out that Order 22, Rule 4(4) of the Code applies only to cases where the plaintiff learns that the death of one of the defendants took place before judgment is delivered and the Court is invited to enter judgment against that defendant also, and further, this has nothing to do with the bringing on record of the legal representatives of a defendant as it only provides for exempting the plaintiff from substituting the legal representatives in fit and proper cases.
13. Natesan, J. in Velappan v. Parappan, ( : AIR1935Mad236 ) as settled proposition and following the same, held as follows:-
'In my view the provisions of O.22, R.4(4), could be availed of at any time before judgment .. .. .... If a person is pro forma respondent, having no interest in the litigation, the rule providing for abatement cannot apply.'
The Karnataka High Court in Rahim v. Rajamma, : AIR1977Kant20 , agreeing with the view expressed by Natesan, J., in Velappan v. Parappan, : AIR1969Mad309 , has ruled thus:
' If the Court in exercise of its discretion, grants exemption to the plaintiff from the necessity to substance the legal representatives of the concerned defendant, the Court can proceed to dispose of the suit and pronounce judgment against each defendant notwithstanding the fact that the legal representatives of such defendant have not been brought on record. When such judgment is pronounced, sub-rule (4) expressly provides that it shall have the same force and effect as if it had been pronounced before the death took place .... It therefore follows that when a judgment is pronounced in a suit against the deceased defendant, after according necessary exemption tinder subrule (4), no abatement as such shall be deemed to have taken effect. As the judgment i1self is deemed to have bow pronounced during the lifetime of, the deceased defendant, it is obvious that the abatement shall not be deemed to have taken effect. As in law, it has to be deemed that no abatement has taken efect ........
Recently, in Nepal Chandra v. Rebati Mohan AIR 1979 Gau 1 the Gauhati High Court, agreeing with the view expressed by this Court in Lakshmanan Y. Chidamburarn : AIR1935Mad236 and Velappan v. Parappan (AIR 1969 Mad _'), observed that 'the provisions of sub-rule W of R. 4 of 0. 22 are applicable to appeal as well as to suit and the power to exempt under the said sub-rule can be exercised at any time before the judgment. n-en after the abatement has taken place.' The learned Judge in that case has also pointed out that as sub-rule (4) has not specifically insisted on the Wing of an application for exemption, unlike some of the other provisions in the Code of Civil Procedure making the filing of an application obligatory for obtaining any orders from the Court under the concerned provisions, the contention raised in that case that since an application was not filed for exemption under sub-rdle (4), the exemption should not be granted., had no force.
We are in full agreement with the views expressed by the Division, Bench of this Court in Lakshmanan v. Chidambaram : AIR1935Mad236 , by Natesan, J., in Velappan v. Parappan : AIR1969Mad309 and by the other High Courts in the decisions referred to above, and accordingly we grant exemption to The appellant-plaintiff from the necessity of substituting the legal representatives of the deceased fifth respondent in his place. In this context we would like to point out that though as per the proviso to S. 6 of the Hindu Succession Act. the devolution would be under the Act and not by survivorship if any female relative or a male relative claiming through that female relative as specified in Class I of the schedule survives, the deceased, Expln. 11 to the said proviso clearly states that neither a person who has seperated himself from the coparcenary before the death of the deceased not my of his heirs, can claim on intestacy a share in the estate. Thus, it is clear that neither the fifth respondent nor his heirs would be entitled to any share in the suit property. Therefore, no purpose would be served by impleading the legal representatives of the fifth respondent. Irrespective of 'the necessity or otherwise for an application fox exemption, the -appellant in A. S. 598 of 1974 has now filed a petition in C. M P. 1150/80 for exempting her from impleading the legal - representatives of the fifth respondent. The petition is. allowed.
14. We shall first take up A.S. No. 310 of 1977. In this appeal, the first defendant as appellant has challenged the findings of the court below on issues 11 and 13, its finding on Issue No. 14 so far as it relates to Items 7 to 9 of plaint I schedule and its direction to the first defendant to pay the court-fee due to Government. However in view of the fact that the first defendant himself has admitted in his written statement that Item 7 to 9 of Plaint I schedule were taken by the joint family from the fifth defendant in exchange -for Item i of Plaint schedule, and as such the said Items 7 to 9 have become joint family Properties. Learned counsel for the first defendant-appellant herein has expressed his inability to attack the finding of the court below on issue No. 14 regarding those items. Likewise he has not advanced any argument against the finding of the court below on issues 11 and 13. As regards the question of payment of court-fees, due to Government, since the first defendant has taken up a recalcitrant attitude by not replying Ex- A 2 under which the plaintiff had called upon the first defendant to effect a division of ail the joint family properties, and allot her share, which attitude has necessitated the plaintiff to file the suit, the direction of the Court, in our view, does not call for any interference.
15. By C. M. P. No. 2922 - of I' in A. S. No. 310 of 1977, the first defendant has sought the permission of the Court to raise an additional ground, contending that the fifth defendant to the original action was also entitled to an equal share in his father's properties and in such a case the plaintiff would be entitled to 1/12 share and not to 1/10 share as decreed. However at the stage of hearing of the appeal. learned counsel for the appellant has conceded that there are no merits, and nothing survives for consideration - by this Court. In the circumstances, both A. S. 310 of 1977 and C. M P. 2922 of 1979 have to toe dismissed.
16. Now, we shall pass on to the other appeal A. S. No. 598 of 1974 preferred by the plaintiff, in which the dispute relates only to the findings in respect of Items 4 and 5 of Plaint I schedule. First of all, we shall dispose of the dispute with regard to Item No. 5 and then take up Item No. 4.
17. Item No. 5 is a house situate at Reddikkara Street bearing Door No. '58, whose value is given as Rs. 7,500/- in the plaint. According to the first defendant, this item was purchased by him for his benefit with funds provided by his wife's brother. He would add that the joint family during the relevant period was heavily indebted and as such it had no means td acquire the said item and therefore, the appellant's claim for a share therein is unsustainable. The first defendant as D. W. 1 has deposed that he purchased Item No. 5. under Ex. B 8 dated 24th March, 1955 from one Rukmani Ammal and two others for a total consideration of Rs. 3,600/-, under which be undertook to discharge a mortgage debt amounting to Rs. 1,150/- due to one Venugopal Chettiar under ~ Ex. B 9, that he discharged the said mortgage, as evidenced by the endorsement Ex. B 10, and that the entire amount was provided to him by his wife's brother -Balasundaram. In cross-examination it has been elicited that Balasundaram bad some properties settled by his mother and that he gave the first defendant the above said amount of Rs. 3,500/- gratis at his request As against this evidence, the appellant herein as P. W. I has stated that Item 5 was purchased while her father Swaminatha Mudaliar was alive, out of the profits earned from the joint family (hardware) business, but that she did not know in whose name the We deed was taken. During the cross-examination, she has admitted that Balasu ndaram Mudaliai was carrying on glass business in the Moore Market at Madras, that his deceased mother had some properties at Mundiambakkam and that it is the first defendant who is paying the house-tax for Item No. 5. The documents Exs. B 8, R 9 and B 10 more clinchingly support the case of the first respondent-first defendant, thereby belying the case of the appellant - In the recitals.,, as to consideration in Ex. 9 8 the vendee viz., the first respondent was directed to discharge the mortgage wider Ex- B 9 in favour of Vcnugopala Chettiar. Accordingly, the first respondent has even on the, &L-; of the registration of EiL If feed the said debt by paying a sum of Rupees 1,1501- made up of Rs. 1,000/- towards the principal and Rs. 1501- towards interest, as evidenced by Ex. B 10, the endorsement made on Ex. B 9. Out of the balance of sale consideration Rs. 2,000/- was paid before the Sub Registrar to one of the vendors, besides Its. 350/- already paid as advance. The document was registered on 26th March, 1955. From the endorsement made by the Sub Registrar regarding the payment of Rs. 2,000/-, it is seen that the said amount was paid only by the first respondent. The evidence adduced on the side of the appellant is very meagre to substantiate her case and thus he has failed to discharge the initial burden cast upon her. But, on the other hand, the documentary evidence in favor of the first respondent is more clinching when it is taken in conjunction with the admission made by P. W. I that it was the first defendant who was paying the house-tax in respect of Item No. 5. It is pertinent to note that it is not the case of the appellant that this item was purchased benami in the name of the first respondent for the benefit of the joint family or that the first respondent purchased the said item out of the joint family funds. The appellant has not shown that the joint family had adequate income and sufficient nucleus or sufficient and adequate income in order to acquire this item of property so as to hold that the property should be presumed to have been acquired from and out of joint family funds. As contended by Mr, M.V. Chandran, learned counsel for the first respondent, the last purchase of property by Swaminatha Mudaliar was made in the year 1934 under Ex. B I I and thereafter, for more than 20 years, there was no subsequent acquisition of property by the joint family, and if there had been surplus income, the joint family could have and should have purchased some properties during the period of more than two decades, which it had not done, obviously for the reason that there was no surplus income. Under Schedule A to the written statement, the first respondent has given a list of joint family debts still due to be paid. The appellant has not chosen to file any replication denying such debts. Admittedly this property was purchased during the lifetime of Swaminatha Mudaliar. So, when the Prop' was not purchased in the name of the Kariba Swaminatba Mudaliar, the indication is that the property was not purchased OW of the joint family funds. Mr. Chandral), relying on the decision in K. V. NarayanaSwami lyer v. K. V. Ramakrishnan Iyer (1964),7 SCIL 490:-,(AUL 1%5 SC 289), would contend that having retard to the evidence on record showing that the joint family had no sufficient nucleus on the date of acquisition of this property and in the face of the evidence that the first defendant was proved with sufficient funds by his brother-in-law few such purchase, the presumption is that Item 5 has been purchased by the first respondent out of his own funds but not by the joint family.
18. Countering the above argument, .Mr. K. Sampath would submit that the first respondant cannot be said to l6ve discharged the burden of proving that he purchased the property out of his own funds. According to him, when the first respondent had acquired the property while he was one of the members of the joint family, it should be presumed that such acquisition was for &a; benefit of the rest of the members of the family, having been made from out of joint family funds, especially when the joint family was possessed of some other properties acquired earlier to the acquisition of Items, and that the onus is heavily on the first res pondent who has challenged the joint family' nature of the property, to establish that he has purchased the said prop out of his own acquisition and without resort to or without deriving any assistance from the joint family nucleus. For the above submissions, he would rely on a decision rendered by a Division Bench of this Court, to which I was a party, 'in Krishnan Y. Shanmugham ( : (1975)2MLJ73 ). In that decision, it was held that in case it was proved that the joint family was possessed with sufficient nucleus and that if that apparatus of nucleus is in a position to yield surplus laconic enabling the members of the joint family to purchase property in the name of one or the other members of the family, dm the presumption is raised that such property, though prima facie in the name of tee of the members of the family, is validly in be hold to be the property of the family and not of the numbers concerned and that the onus is heavily on the challenger to establish the contrary.
19. Since in the present case we Are of the opinion that the joint family was not in affluent circumstances possessing sufficient and adequate nucleus yielding a surplus so as to enable the purchase of the property for the joint.family, even though it be in the name of the first respondent, but on the contrary the fiat respondent has shown that be was provided with funds by his brother-in-law, we, feel that there is no presumption raised in favour of the joint family; but on the other hand, the first respondent has discharged the onus of proving his case of self acquisition. The above view of ours is fortified by the observations made by the Supreme Court in Gowdappa v. Revgowda : 3SCR245 . In the circumstances, the principles laid down in Krishna v. Shamoughani 1975 2 Mad 73 cannot be availed of by the appellant/ plaintiff. Therefore, vie are unable to accept the case of the appellant that Item 5 a joint family property, and accordingly the finding rendered by the court below 'in respect of this property is not liable to be disturbed and is confirmed.
20. Now, the remaining and most important point for our consideration is in respect of Item 4 of the Plaint I schedule, which is the dwelling house of the family left by Swaminatha Mudaliar and which is admittedly in occupation of the first respondent/first defendant. The, fifth defendant, brother of the first respondent/first defendant, has left the family even in 1929 after executing- a release deed in favor of his father and the first respondent and jetting some items of joint family properties to-, wards his share. Despite the fact that the fifth defendant has been impleaded as a party to this action; he did not choose to lay any claim in do joint family property; on the other hand, be remained ex parts without participating in the suit and likewise he has not participated in this appeal also till his death on 27th March, 1977.
21. Mr. Sampath would vehemently urge that the learned trial Judge erred in tendering a finding on Issue No. 12 that the family dwelling house (Item 4) is liable to be divided only at the option of the first respon. dent, without giving a reasonable and logical construction to S. 23 of the Hindu Succession Act.
22. Section 23 of the Hindu Succession Act reads as follows:.
'Where a Hindu intestate has left surviving him. or her both male and female hews specified in Class I of the Schedule and his or her family, then, notwithstanding anything contained in this Act, the right of any such female heir to claim partition of the dwelling house shall not arise until the male heirs choose to divide their respective shares therein; but the female heir shall be entitled to a right of residence therein:
Provided that where such female how is a daughter, she shall, be entitled to a. right of residence in the dwelling house only if she is unmarried or has been deserted by or has separated from her husband or is a widow.' The above section is a special provision dealing with the partition of a dwelling house and the right of the male and female heirs of the intestate therein. There can be no doubt that a female heir, specified in Class I of the Schedule to the Act inherits a share in dwelling house absolutely. But, Sec. 23 postpones the right of such a female heir to claim partition of the dwell1ing house until the male heirs choose to divide their respective shares therein. The object behind this section seems to be to prevent fragmentation or disintegration of a family dwelling house at the instance of a female heir or heirs, to the prejudice of the male, heirs. This is based on the principles embodied in S. 44 of the Transfer of Property Act and Section 4(1) of the Partition Act. The Objects and Reasons behind the said section read thus:
'This clause restricts the right of a female heir to claim partition of the family dwelling house so long as the male heirs do not choose to effect partition of the same but expressly recognises her right to reside in such house.'
Ramaprasada Rao, C. J. in Mookammal v. (hitrak.adivammal (Second Appeal No. 1657/ 79-Judgment dated 23rd Oct., 1979 reported in : AIR1980Mad243 ), while examining the scope and applicability of S. 23. has observed thus:
'S. 23 of the Hindu Succession Act. 1956 appearing in the chain of sections of the codified Hindu Law is intended to respect one of the ancient Hindu tenets which treasured the dwelling house of the family as an impartiable asset as between a female member and a male member. In order to perpetuate that memorable intention of Hindu families, Parliament took that auspicious aspect also into consideration while codifying the Hindu Law. It is only in this perspective that Sec. 23 of the Hindu Succession- Act, 1956, has to be understood............The section provides; a special provision safeguarding dwelling house. It puts as it were a statutory interdict on a female heir to claim partition of the dwelling house until the male heirs choose to divide their respective shares therein. An equitable provision for a female heir has however been thought of during the intermission when the above said interdict would operate. During that intermission. the female heir shall be entitled to a right of residence.'
The above provision debars the female heir or heirs from claiming partition of the dwelling house except on the happening of a contingency viz., when the male heirs come to a division of the same. So long as the contingency does not happen, the female heir or heirs is or are precluded from claiming partition; but the right of the female heir to claim partition on the happening of the said contingency contemplated under that section does not in any way annihilate or destroy or whittles down her. legitimate share in the dwelling house. The only restriction imposed by S. 23 is to postpone the right of claiming partition of such share during the period of interregnum from the time of death of the intestate till the happening of the contingency contemplated therein. The restriction is strictly confined to the right of such female heir to ask for partition of the family dwelling house and operates only (1) if the whole family dwelling house is 6ccupied -by the member,-. (if the family of the intestate and (2) until the male heirs choose to divide their shares in it. The real intendment of the section is to defer the right of the female heirs specified in Class I of the Schedule to demand actual partition of the family dwelling house in occupation of the members of the family of the intestate and to keep such right in abeyance until the male heirs specified in Class1 of the Schedule choose to divide their respective shares therein.
23. But, the question that arises for consideration in this case is whether this provision restricts the right of the female heir to demand actual partition of the dwelling house even in cases where there is only one male heir of the intestate. Learned counsel for the appellant, pointing out that the family dwelling house viz. Suit Item 4 in dispute, was acquired by the joint family after the fifth respondent had left the family and that the first respondent is the only male heir of the intestate, as specified in Class I of the Schedule, who survived the intestate at the time of his death, would vehemently urge that S. 23 does not at all apply to the facts of the present case and hence the appellant is not precluded from claiming partition of the house under Item 4, since the Parliament. by using the expression 'until the male heirs choose to divide their respective shares therein' in Sec. 23, sh6uld be deemed to have intended that the restriction is to operate only if there are two or more male heirs in the family of the intestate and not when there is only a single male heir. He would add that V it is to be hold that the restriction would operate even in the case of a single male heir, the right of a female heir to claim partition of her legitimate share would practically be defeated as there is no likelihood or possibility of any division of the dwelling house so long as the single male heir continues to be in occupation of the house. In support of his submission, he placed reliance on the decision of Hemalatha v. Umasankari : AIR1975Ori208 wherein a Division Bench of the Orissa High Court has held as follows:
'A bare perusal of the section indicates that a female heir is not entitled to enforce her right -of partition unless the male, heirs exercise the right. H the male heirs ask for partition, the female heir can claim her legitimate share so long as the dwelling house is concerned. In this case the only male heir of Hadibandhu is Dinabandhu. There are no plurality of male heirs. Consequently, the question of any other, male heir claiming a partition with Dinabhandhu does not arise. Where there is a single male heir, the right to claim partition of the dwelling house by a female heir in not excluded. The expression 'the male heirs' towards the last para of the main section furnishes the clue to the meaning of the section. If there are more than one male heir, then there is a possibility of any one of such heirs asking for a partition of the dwelling house and the female heir in such a case can claim partition. But, where there is a single male heir, there is no possibility of that male heir claiming any partition against another male heir. We are therefore clearly of opinion that where there is a single male heir and others are female heirs, then those female heirs are entitled to claim partition'
Mr. M. V. Chandran, learned counsel for the respondent, drew our attention to a contrary view expressed by a Division Bench of the Calcutta High Court on the scope and interpretation of S. 23, in Arun Kumar v. Jnanendra : AIR1975Cal232 , wherein the Bench has viewed thus:
'It is clear from the section that the legislature does not approve of division of a dwelling house at the instance of a female heir against the will of the male heirs. This restriction which has been imposed by Section 23 prevents fragmentation or disintegration of a family dwelling house at the instance of the female heirs to the hardship and difficulties to which the male heirs may be put. A Hindu may die leaving a son and a number of daughters. If at the instance of any such daughters the dwelling house in allowed to be partitioned against the wish of the son, he may be put to great hardship. The house may not be capable of partition and in that caw it will have to be sold. If, in such, a case, it is held that Section 23 is inapplicable because of the. absence of male members, in our view it will defeat and frustrate the very purpose for which the section has been enacted. In the first instance, the section imposes a bar when it provides 'the right of any such female heir to claim partition of the dwelling house shall not arise' but the bar is removed only or. the happening of the contingency, viz., when the male heirs choose to divide the&. respective shares therein. It may be that there is one male heir and one female heir. and there may not be any chance of that contingency to happen, but. that will be ground to say that the section is The rule which has been laid down by Section 23 clearly indicates the intention of the legislature that female heirs should not be allowed to divide the dwelling house against the will of the male heirs and, on a proper construction of the notion, we are of the view that it is also the intention of the legislature when there is only one male heir. If the male heir chooses to divide the dwelling house, undoubtedly the female heir or heirs will be entitled to claim partition, but so long as no such choice is actually exercised the female heirs are debarred from claiming partition.'
In this connection, we would like to refer to the decision rendered by a learned Judge of the Gujarat High Court in ban v. J. N. Bhatt : AIR1974Guj23 . In that case, the intestate died leaving behind him surviving his widow (the therein), one son (first defendant) daughters (defendants 2 to 5). Plaintiff was the second wife defendants 4 and 5 were the daughters of the intestate through her, whilst the first defendant was the son and defendants 2 and I were the daughters of the intestate through his pre deceased first wife. The deceased left a dwelling house and some cash. The first floor of that house was Occupied by the members of the familv whilst the ground floor was let out to tenants. One of the contention raised in that case was that unless the male heir viz., the first defendant chose to divide the respective shares in the dwelling portion of the house viz., the first floor, no partition-could be ordered by the court by virtua of S. 23 of the Hindu Succession Act, since the first floor was in the occupation of the members of the family.
The learned single Judge, accepting - the above contention, held that 'the plaintiff and defendants may continue to occupy the same as-before till defendant No. I chose to divide the respective shares therein as provided in S. 23' and that 'so far as the ground floor and out-house are concerned, they shall be divided amongst the plaintiff and defendants ........ On a perusal of the entire judgment rendered by the learned Judge, it is seen that though no detailed discussion about the scope of S. 23 has been made, the learned Judge seems. to have been inclined to the view that even in cases where there is only one male heir in the family, the female heirs cannot claim partition of the dweiling house or portion of the house in occupation of the family members, until the said male member chooses to divide the respective shares therein.
24. It is pertinent to note here that the Calcutta High Court in Arun Kumar v. Jnanafidra : AIR1975Cal232 held that S. 13(2) of the General Clauses Act, 1897, wherein it is mentioned that 'words in the singular shall include the plural and vice versa', could not be made applicable for the purpose of construing the words 'male heirs' as used in S. 23 of the Act as to include 'a single male heir'. The reasons assigned by the Calcutta High Court run thus -
'Prima facie it does not appear that there is anything repugnant in the subject or context to the applicability of S. 13(2). But, a further difficulty has been created by the word 'respective' which apparently stands in the way of the applicability of S. 13(2). Even if the words 'male heirs' also include a singular, that is, 'male heir', no effect can be given to it in the presence of the word 'respective'. It is beyond the purview of the court to omit the said word from the section for the purpose of giving effect to the provision of S. 13(2). If Section 13(2) could be applied, there would not have been any difficulty. But, as it is inapplicable, it is necessary to ascertain the intention of the legislature.'
It was for the above reasons that the Calcutta High Court decided the scope of S. 23 of the Act by going into the inten4niont of the legislature and gave its opinion as above mentioned.
25. Padmanaban, J., of our High Court in Selukha P. K. Rajamani Ammal v. MAL Nagalammal (A. S. No. M of 1975, Judgment dated 20th Jan., 1973), while dealing with a case where theft was only one, male heir in the family, agreed with the view taken by the Calcutta High Court, dot Sm. 13(2) of the General Clauses Act cannot be attracted while interpreting S. 23 of the Act; but, as regards the score of S. 23 itself,, the learned Judge, agreeing with the view taken by the Orissa High Court in Hemalata v. Umasankari : AIR1975Ori208 , held as follows:
'In my view the provision of Section 23 postpones the right of the female heir to demand actual partition of the family dwelling house and keeps it in abeyance until the male heirs specified in Class I decided to partition it i.!;., to divide it by metes and bounds among themselves. The words 'until the male heirs choose to divide their respective shares therein' suggest that there must be at least two such male heirs if the restriction is to operate. ' I therefore respectfully follow the opinion expressed by the Bench of the Orissa High Court and hold that the expression 'the male heirs choose to divide their respective sham therein' occurring towards the last part of the main section furnishes the clue to the meaning of the section. Only if there are more than one male member. then the question of dividing their respective shares therein will arise. Due weight will have to be given to the expression 'choose to divide their respective shares therein' and if so done, the words 'male heirs' cannot be said to include the singular also. Apart from this, there is also the fact that there is a possibility of that male heir not exercising his claim for a partition at all and thereby he can effectively defeat the rights of the female heirs to claim partition of the dwelling house. In this view I hold that S. 23 of the Hindu Succession Act will apply only when there is a plurality of male heirs and not when there is only one singular male heir.'
At this Juncture it would be useful to refer to the observations of Ramaprasada Rao, C. J. in Mookammal v. Chitravadivarnmal (S. A. 1657/79, Judgment of this High Court, dated 23rd Oct., 1979; : AIR1980Mad243 ), where the heirs surviving the intestate were one male member and one female member. In that case, the male member had alienated his half share in the dwelling house. to a stranger without the consent of. the female member. The female member filed the suit for partition of the dwelling house and allotment of hat moiety therein. Ramaprasada Rao, C. J. after observing that S. 23 is intended to respect one of. the ancient Hindu tenets which treasured the dwelling house of the family as to impartible asset as member and a male member, and to perpetuate that memorable intention of Hindu families, and as such it was a special provision safeguarding the dwelling house, nevertheless, on the peculiar facts of that case, held that since the male member had alienated his half share in the dwelling house, it would no longer be a dwelling house as mentioned in S. 23 and accordingly the female member was entitled to her share therein. On a reading of the entire judgment in that case, it is seen that though Ramaprasada Rao, C. J., has not exhaustively discussed as to what would have been the position in case the single male member had not alienated his share in the house, the view taken by the learned Chief Justice in that case seems to be that even in cases of a single male heir, the female heirs cannot claim partition of the dwelling house until he chooses to divide the respective shares therein.
26. Thus, there is a, conflict of judicial opinion among the various High Courts in this country about the scope and applicability of S. 23 in cases where there is only one male heir and one-'or more female heirs in a Hindu joint family.
27. After carefully going through all the above judgments, and bestowing our anxious consideration to the real intendment of the Parliament in enacting S. 23, while agreeing with the view taken by the Calcutta High Court and Padmanabhan, J., that S. 13(2) of the General Clauses Act cannot be attracted while interpreting S. 23 of the Hindu Succession Act, we are of the opinion that the Parliament, while enacting this section, should have felt that the dwelling house of a Hindu joint family should be regarded as an impartible asset treasured by the ancient Hindu tenants and as such the dwelling -house should be allowed to be preserved by the family until the male heir or male heirs, as the case may be, mentioned in Class I of the Schedule, opted for dividing the same and to that extent the Parliament wanted to recognise the traditions and sentiments so cherished by the ancient Hindu families from time immemorial. If the male members choose to divide the family house among themselves, or, if a single male member chooses to divide it among the respective shares or alienates his share to a stranger, then it would mean that the contingency has arisen whereby the male members are no longer capable of preserving' the dwelling house. That is why the Parliament has, under the section, allowed the female members to claim partition in case the male members choose to divide their respective shares in the house. At this juncture, we, may point out that the Parliament has not in any way restricted the right of the female member to claim partition in- the other properties left by the intestate. In our opinion, so long as the male members do not choose to divide their respective shares in the dwelling house, the dwelling house is in a way excluded from division, subject to the right of the female members to a share therein and the right of residence of the unmarried female members etc., while doing so, the Parliament should have taken into account the fact that the female members after their marriage naturally live with their husbands in their houses. If at the instance of any such female members, the dwelling house is allowed to be partitioned against the wishes of the male heir, he may be put to great hardship and be compelled to alienate the house if it is incapable of division. Therefore it was but just that the family dwelling house should be allowed to be kept by the male members till they chose to divide it. and the female members should not be the persons responsible for the di%4,,.egration and fragmentation of the dwelling house. In fact Section 23 has been introduced as a special provision respecting dwelling houses, as clearly seen from the heading of the section itself, thereby laying emphasis on the preservation of the dwelling house. It was for these reasons, in our opinion, the Parliament has given the male members an edge over the female members in the matter of the ,option for partition of the dwelling house. But, at the same time, it is significant to note that the proviso to S. 23 preserves the right of residence of a female heir who is unmarried or is deserted by or has separated from her husband, or is a widow.
28. We may also add that if the Parliament had intended that S. 23 would not apply to, the case of a single male heir, and that the female heirs in such cases could seek division of the dwelling house, it would have certainly made a specific provision respecting that contingency by at least adding a. proviso to that effect to S. 23. As pointed out by Mulla, at page 942 of the Hindu Law, 14th Edition, this section is intended to ensure the casement of disruptive influences which would operate if the right of a female heir to claim partition of the family dwelling house were left unrestricted.
29. We are conscious of the fact that there are certain hard cases where for instance, the intestate has left only a big man-don in the form of a dwelling house and so other property, (and is) survived by a single male heir and one at more female heirs. In such case, even though the female heirs are entitled to a share in the property of the intestate under the Act, such right would practically be defeated and frustrated since there a no possibility of the single male heir choosing to divide, the shares in Use property of the intestate, and thus the right of the female co4kein to have a partition of their shares is likely to be successfully obstructed for them. In such cases, the right to demand partitian, vested in female heir, will be permanently postponed wid ultimately frustrated. Such hard contingencies would cause great hardship to the female heirs; but that cannot be avoided. In our opinion, if the view of the Orissa High Court, followed by Padmanabban, J. is to be accepted, then, in our opinion, grow injustim would be done to the single male heir and the very object with which the section has been enacted would be completely nuffifict In our view, the hardship that would be caused to the female heirs in not being able to claim partition is cer*aitdy relatively less than the injustice that could be done to the single male member. Despite the above opinion held by in, we cannot help observing that it in very unfortunate that S. 23 is not very carefully and lucidly worded in a particularity of language, avoiding the scope for different interpretation. In our view, S. 23 deserves nxidifi=tion so as to avoid difficulties of interpretation leading to diver mat views and easinquent anomaly.
30. Since we have held ' am is cum f a sm& male heir, the lemak lim cannot claim partition of the dwelling house until the contingency contemplated in Section 23 has arisen, we have no other option but to negative the claim of the appellant plaintiff for an immediate partition of 69 house in Item 4. 11hough at the initial stage we left that it would be just and proper if the appellant is paid certain amount in lieu of her 1/10 share in Item 4. after ascertaining its market value, we an unable to grant even that reflect to bet in view of the strict legal restriction imposed by *a section. Despite our repeated advices, the parties also did not come forward with any amicable settlement in this regard. Accordingly, we hold that the appellant plaintiff would be entitled to a 1/10 share in Item 4 house, which is not disputed by the respondents, and that she is at liberty to enforce her not for division of her dwelling house when the contingency contemplated under S. 23 is satisfied.
31. In the result, A. S. No. 598 of 4974 is dismissed subject to the above observations and A. S. No. 310 of 1977 and C. M. P. No. 2922 of 1979 are also dismissed. The parties are directed to bear their respective costs in both the appeals.
32. Appeals dismissed.