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Karuppa Udayar and ors. Vs. Sellamuthu Udayar and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai High Court
Decided On
Reported in(1956)2MLJ250
AppellantKaruppa Udayar and ors.
RespondentSellamuthu Udayar and ors.
Cases ReferredImrit Konwar v. Roop Narain Singh
Excerpt:
- .....the other half share. in short the partition deed while allocating different portions of the joint family properties 1o devaraja and karuppa udayan kept certain, items jointly for' the benefit of vythialinga and kolandaiappa and some items are allotted separately to vythialinga and kolandaiappa.3. what is urged before me is that on a true and proper construction of exhibit a-1, it should be understood that though two members of the joint family had separated and gone out of the family, the remaining two brothers were to remain joint without even any ascertainment of their shares or division in status, amongst them. if that is the case, kolandaiappa having died without any cons, vythialinga became the sole surviving member of the joint family and as such, the plaintiff's who are the.....
Judgment:

Govinda Menon, J.

1. Defendants 2 to 5 and 7 and 8 are the appellants in this Second Appeal which arises out of a suit for partition and recovery of possecsion of a half share in the properties which originally belonged to one Kolandaiappa Udayar and his brothers. Both the lower Courts have held that Kolandaiappa and his brother, Vythialinga, were divided in status as a result of a partition deed, Exhibit A-1, dated 24th April, 1890, though there had been no division by metes and bounds and on that finding a preliminary decree for partition was passed. The main question argued in this Second Appeal is whether the conclusion arrived at by the Courts below that the aforesaid brothers were divided in status is justified on a true and proper construction of Exhibit A-1.

2. One Karuppa Udayar had four sons, Kothappa, Devaraja, Vythialinga and Kolandaiappa of whom by the time of Exhibit A-1, viz., 24th April, 1890, Kothappa had died leaving a son by name Karuppa Udayan. Exhibit A-1 is styled a partition, deed and was executed by the three brothers Devaraja, Vythialinga and Kolandaiappa as well as by Karuppa Udayan the son of the deceased brother Kothappa. The preamble portition of the document states that the executants have partitioned the properties mentioned in the schedule in the manner described in the document and each one of them should enjoy his respective share, etc. In the operative portion of the document it is mentioned that all the properties originllay belonged to the father of executants Nos. 1 to 3 and the grandfather of executant No. 4. Then, there is the recital that executants Nos. 1 and 4, that is, Devaraja and Karuppa Udayan are to have their shares separated and given. Provision regarding the shares of the remaining brothers, viz., Vythialinga and Kolandaiappa is the subject-matter of the present litigation. What is stated is that Vythialinga shall enjoy one half out of certain land and Kolandaiappa shall enjoy the other half. There is a further recital that out of another land 3/4th share shall be enjoyed by Vythialinga and Kolandaiappa and one-fourth share by Devaraja. There is another provision that Devaraja shall enjoy 1/8th share in another land and Vythialinga and Kolandaiappa the remaining 7/8th share. With respect to some other land it is stated that Vythialinga shall enjoy a half share and Kolandaiappa the other half share. In short the partition deed while allocating different portions of the joint family properties 1o Devaraja and Karuppa Udayan kept certain, items jointly for' the benefit of Vythialinga and Kolandaiappa and some items are allotted separately to Vythialinga and Kolandaiappa.

3. What is urged before me is that on a true and proper construction of Exhibit A-1, it should be understood that though two members of the joint family had separated and gone out of the family, the remaining two brothers were to remain joint without even any ascertainment of their shares or division in Status, amongst them. If that is the case, Kolandaiappa having died without any cons, Vythialinga became the sole surviving member of the joint family and as such, the plaintiff's who are the daughters of Kolandaiappa have no right to claim partition. There is, no doubt, whatever, that some properties were kept jointly by the two brothers while certain other items were given to each one of them separately. The question for consideration is whether by the fact of certain items being kept jointly, there was no division in status amongst the brothers. It is also urged on behalf of the appellants that within six days of Exhibit A-1 under Exhibit A-8 an usufructuary mortgage was taken by Vythialinga and Kolandaiappa jointly in respect of a half share in certain items allotted to Devaraja and Karuppa Udayan. From that, it is sought to be argued that the consciousness of the parties to the document at the time of the partition was that Vythialinga and Kolandaiappa should remain jointly and that was the reason why a joint mortgage was taken. Exhibit A-8 nowhere mentions that Vythialinga and Kolandaiappa remained joint. All that is stated in the document is, that the mortgagors have usufructuarily mortgaged the half-share to which they were entitled in the land which had belonged to them in common. It is difficult for me; to accede to the contention of the appellants that Exhibit A-8 evinces any kind of consciousness that there was a coparcenary existing between Vythialinga and Kolandaiappa. Such being the case, the question has to be looked at from the point of' view as to whether Exhibit A-1 disrupted the coprarcenary between all the four members of the family. There is no doubt that for the ascertainment of the shares of the two members who were going out of the family it was necesssary to find out what the other members have. The law relating to division inter se between the members of a joint family while some of them after taking their shares go out of the family is fairly well settled. In Mayne's Hindu Law (nth edition) at pages 559-560, the law is stated thus:

The view taken in some early cases that where one brother separates from the others, and the latter continue to live as a joint family it must be presumed that there has been a complete separation of all the brothers, but that those who continue joint have re-united, cannot fee regarded as good law.

4. As was observed in Balabux v. Rukma Bhai , in many cases, it may be necessary in order to ascertain the share of the outgoing member to fix the shares which the other coparceners are or would be entitled to and in this sense, subject to the question whether these others have agreed to remain united or to reunite the separation of one is said to be a virtual separation of all. In Balakrishna v. Ramakrishna (1931) 61 M.L.J. 362 : I.L.R. 53 All. 300 (P.C.), Sir George Lowndes, delivering the judgment of the Board adopted the statement of the law by Sir John Edge in Palani Amrnal v. Muthu Venkatachala .

It is now beyond doubt that a member of a joint family can separate himself from the other members of the joint family and is on separation entitled to have his share in the property of the joint family ascertained and partitioned off for him and that the remaining coparceners without any special agreement amongst themselves may continue to be coparceners and to enjoy, as members of a joint family, what remained after such a partition of the family property. That the remaining members continued to be joint may, if disputed, be inferred from the way in which their family business was carried on after their previous coparcener has separated from them. This seems to be a much more satisfactory method of dealing with the question than first to invoke a presumption of a general partition which was never intended and then to superimpose upon it the second legal fiction of a reunion which never in fact took place.

Under the Dayabhaga law, the separation of one of the brothers from the rest does not even prima facie amount to a separation of all, for there, in addition to a mere intention to separate, there must be a division of property by metes and bounds in order to effectuate a partition. But once there is a partition between brothers, it must be taken that all the properties had been separated, and the mere fact that the separated members execute certain documents jointly does not show that they had not separated.

In Mulla's Principles of Hindu Law, 11th edition, at pages 434-35, the learned author observes as follows:

The general principle is that every Hindu family is presumed to be joint unless the contrary is proved. This presumption, however, does not continue after one member has separated from the others. As observed by the Judicial Committee: 'There is no presumption when one coparcener separates from the others, that the latter remain united.... An agreement amongst the remaining members of a joint family to remain united or to reunite must be proved like any other fact'. It is open to the non-separating members to remain joint and to enjoy as members of a joint family what remained of the joint family property after such a partition. No express agreement is necessary for this purpose. The intention to remain joint may be inferred from the way in which their family business was carried on after their former coparcener had separated from them or it may be inferred from other conduct indicating such an intention. Thus, if one brother separates from the other brothers, there is no presumption that the latter remain united. It is a question of intention which must be proved like any other fact. For an instance where under an instrument of partition one member separated from the family and yet there was no severance of the family: see Section 327.

(2) When there has been a separation between the members of a joint family, there is no presumption that there was a separation between one of the members and his descendants. Thus if two brothers A and B separate there is no presumption that there was a separation between A and his sons or a separation between B and his sons.

There is an authoritative pronouncement of the Supreme Court about the nature of coparcenary when one of the corparceners separates himself in Bagavathi Prasad v. Rameshwari Kuer : [1951]2SCR603 , where it is observed:

Where one of the coparceners separates himself from the other members of the joint family and his share in. the joint family is partitioned off for him there is no presumption that the rest of the coparceners continue to be joint. It would be a question of fact to be determined in each case upon the evidence relating to the intention of the parties whether there was a separation amongst the other coparceners or that they remained united. The burden would, undoubtedly, lie on the party who asserts the existence of a particular state of things on the basis of which he claims relief.

Their Lordships refer to the well-known case in Balabux v. Rukma Bhai , as well as to the subsequent decisions of the Privy Council. But Mr. Gopalaswami Ayyangar for the appellants refers to the observations of Sir John Edge in Palani Anmmal v. Muthu Venkatachala Monegar , viz.:

But the mere fact that the shares of the coparceners have been ascertained does not by itself necessarily lead to an inference that the family had separated. There may be reasons other than a-contemplated immediate separation for ascertaining what the shares of the coparceners on separation would be.

He also relied upon the dicta laid down in Ramanna v. Jagannatha , which are as follows:

The repeated references in Exhibit B to 1/10th share of each of the two brothers have been emphasised in argument for the appellant but while they do not in any way seek to qualify what was stated in Approvier's case (1866) 11 M.I.A. 75, their Lordships are unable to hold that coparceners who intend to remain joint and undivided become divided contrary to the intention because for purposes of pretence they refer to their interests as represented by a fractional' share.

I do not think that these cases can be of any help to the learned Counsel for the appellants.

5. In Ramanna v. Jagannatha , it was celar that there was no intention to divide and what is stated in Palani Ammal v. Muthu Venkatachala Monegar , is only a general proposition. As observed by the Supreme Court the question is one of intention that can be gathered from the various circumstnces. There was no reason if Vythialinga and Kolandaiappa intended to remain joint, to have some items of properties divided and allotted separately to their respective shares. The partition deed could very well have said that these two brothers were to remain joint and enjoy the properties jointly.

6. Even as regards some of the items allotted to them jointly that was done because after a fractional share had been allotted to Devaraja in some of the items it was provided that the remaining shares should be enjoyed by Vythialinga and Kolandaiappa jointly. Even there, there was no intention that the enjoyment shall be jointly. The preamble to Exhibit A-1 makes it clear that each one of the brothers is to have his share separated and enjoyed. The Tamil expression (our respective share) can mean only that each one of them is to be separate from the other. I have, no doubt, whatever that by Exhibit A-2 the four executants to that document have got themselves completely separated and on this ground there is no reason to differ from the view taken by both the Courts below.

7. It was next urged that nearly eight years after the death of Kolandaiappa, his widow, Andayammal, filed a suit for partition of Kolandaiappa's share in the properties, O.S. No. 36 of 1902 on the file of the District Munsif's Court, Salem, against Vythialinga and his sons, defendants 2 to 4. The trial Court decreed the suit on the footing that Exhibit A-1 which was marked in that suit as Exhibit A-2 effected a partition in interest among all the members though there was no division by metes and bounds. It was held that by virtue of the partition deed, the plaintiff's husband Kolandaiappa became a tenant in common with Vythialinga and therefore a preliminary decree for partition was passed. The defendants took up the matter in appeal and while the appeal was pending a compromise was entered into between the parties on the basis of which a compromise decree was passed by which the widow of Kolandaiappa renounced all her claims to the properties stated to belong to her late husband and it was further agreed that Vythialinga and his sons should enjoy those properties with full right. The widow received a sum of Rs. 350 from Vythialinga in full settlement of all her claims for maintenance. Exhibit A-6 is the compromise and Exhibit A-7 is the razinama decree. It is urged that since the widow of Kolandaiappa was entitled to represent the estate of her husband, a bona fide compromise entered into by her should bind the plaintiffs who are her reversioners and as such the present suit for partition is not maintainable. How far a compromise entered into by a widow by which she gave up all her rights in the properties stated to belong to her husband would bind her reversioners has now to be considered. In Khunni Lal v. Gobind Krishna Narain , the principle regarding the binding nature of a compromise by a limited owner has been laid down by their Lordships of the Judicial Committee. It was laid down that

the true test to apply to a transaction which is challenged by the reversioners as an alienation is whether the alienee derives title from the holder of the limited interest or life tenant.

Learned Counsel for the appellants relied upon certain observations from this judgment but it seems to nr that they do not at all help him. But recent decisions of this Court have laid down that a compromise entered into by a limited owner on behalf of the estate is not binding on the reversioner unless it is reasonable and prudent and for the interest of the estate. See the decision in Kaliammal v. Sundarammal : (1948)1MLJ366 . The learned Chief Justice Rajamannar quotes Imrit Konwar v. Roop Narain Singh (1880) 6 C.L.R. 76, for the proposition that a compromise, the terms of which amount to an entire abandonment by a limited owner of all the rights of the reversioners cannot be binding on the reversioners. In that case, the facts were these. In a suit in which a claim was made by virtue of an alleged adoption to the estate of a deceased Hindu the widow made a compromise with the claimant wherein the adoption was admitted but on condition that the widow should enjoy the entire property for her life without power of alienation and that after her death her minor daughters should take the self-acquired property and that the claimant should succeed to the ancestral estate. It was held that the daughters could not under any circumstances be bound by the compromise. A compromise by a widow by which the reversioner's rights and interests are jeopardized should be tested in the same manner as an alienation by her and could be upheld only if that is beneficial to the estate has been recently considered by the Supreme Court. In S.A. Nos. 1825 of 1945 and 429 of 1946 the case-law on the subject has been discussed by Balakrishna Ayyar, J., sitting with Rajamannar, C.J. It is not necessary for me to review them again. There can be no doubt whatever that Andayammal by the compromise gave up,the entire rights of the reversioners for no consideration whatever and, therefore, I am of the opinion that the compromise is not bidning on the reversioners. These were the only two points argued in this Second Appeal and both of them having failed, the Second Appeal is dismissed. I am greatly indebted to Mr. M.R. Narayanaswamy for having appeared as amicus criae and brought to my notice all the revlevant authorities. No leave.


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