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Minor Ramchandra Velayutha thevar and ors. Vs. Seeniathal Alias Pirama Rakkasamuthu Ammal - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai High Court
Decided On
Case NumberAppeal No. 814 of 1949
Judge
Reported inAIR1954Mad1011; (1954)IIMLJ511
ActsHindu Law
AppellantMinor Ramchandra Velayutha thevar and ors.
RespondentSeeniathal Alias Pirama Rakkasamuthu Ammal
Appellant AdvocateK.E. Rajagopalachari, Adv.
Respondent AdvocateP.N. Appuswami, Adv.
DispositionAppeal dismissed
Cases ReferredKamala Bala v. Jiban Krishna
Excerpt:
family - partition - hindu law - widow filed suit for partition - suit opposed on ground of misappropriation and conduct of widow - no restriction on enjoyment of money by widow could be put in absence of any proof of danger to corpus allotted to her - no evidence led to prove allegations - suit for partition allowed. - .....whether provision should be made for the marriage expenses of defendants 2 and 3 out of the joint family funds? and3. whether moneys belonging to the joint family in which the plaintiff has a share should be invested and the plaintiff permitted only to draw out the interest thereon? these questions were taken up on 10-10-1949. on the first question the subordinate judge remarked that the plaintiff's advocate had endorsed-on the petition that his client was willing to take the southern half of the house but wanted to send the commission back to suggest where the party wall should be built and that this request was a reasonable one. for this reason, the commissioner was directed to report and indicate in the plan where the partition wall should be put up and the matter was adjourned.....
Judgment:

Chandra Reddy, J.

1. This appeal arises out of O. 8. No. 9 of 1947 on the file of the Court of the Subordinate Judge of Tirunelveii. The plaintiff, the second wife of one Ramachandra Velayudha who died on 24-5-1946, sued for partition and for separate possession of a half share of non-agricultural properties claim-Ing it under the Hindu Women's Rights to Property Act. The first defendant is the grandson of Ramachandra Velayudha by his predeceased son. Defendants 2 and 3 are the sisters of defendant 1, defendant 4 being their mother. The suit was resisted on various grounds. Negativing the defences, a preliminary decree was passed on 5-3-1948 giving the plaintiff a half share in items 1 to 4 of schedule I and items 1 to 1 and 19 to 26 in Schedule II.

2. Three questions were reserved for determination at the time of the final decree, viz.,

1. Whether item 1 of Schedule I (which is a house) was capable of division?

2. Whether provision should be made for the marriage expenses of defendants 2 and 3 out of the joint family funds? and

3. Whether moneys belonging to the joint family in which the plaintiff has a share should be invested and the plaintiff permitted only to draw out the interest thereon?

These questions were taken up on 10-10-1949. On the first question the Subordinate Judge remarked that the plaintiff's advocate had endorsed-on the petition that his client was willing to take the southern half of the house but wanted to send the commission back to suggest where the party wall should be built and that this request was a reasonable one. For this reason, the commissioner was directed to report and indicate in the plan where the partition wall should be put up and the matter was adjourned to 25-10-1949 for the commissioner's further report on the above point.

3. On the second question he held that a provision for the marriage expenses of defendants 2 and 3 could not be made out of the whole estate of the joint family. On the third question the contention of the defendants that the plaintiff's share of the cash should be invested in Government or other securities and that interest thereon should be allowed to be drawn by the plaintiff was negatived.

4. After the report of the Commissioner, on the issue relating to the divisibility of item 1, the matter came on for hearing in the trial Court on 3-11-1949. At that time, the defendants wanted the southern half. Rejecting this request, the trial Court observed that on

'the previous occasion when issues 9, 12, 13 and 15 were argued the vakil for defendants 1 and 4 wanted the northern half of the house and hence it was that the plaintiff's advocate endorsed that he would take the southern half. Now defendants 1 and 4 want the southern half. They cannot change their opinion like a weather cock. Virtually at the request of the defendant's vakil the plaintiff's advocate made the endorsement on the petition and it was thereafter that I requested the Commissioner to indicate the position of the party wall and he has done so.'

In that view of the matter, he allotted the southern half to the plaintiff and the northern half to defendants 1 and 4. The defendants who were dissatisfied with the Judgment and decree of the lower Court have preferred this appeal.

5. In this appeal, the decision of the lower Court on all thethree points is assailed.

6. On the question of the division of the house it is argued by the counsel for the appellants that it is an unfair one. Here what the appellants want is not the northern wing but that the plaintiff should not be permitted to have an entrance into the open space of the southern side and that she should be compelled to have access to the street through the northern wing in their occupation. Although at the time of the arguments in the lower Court they wanted to have the southern wing for themselves, they do not want now the southern half as the northern half is much more spacious and convenient than the southern one. Obviously the change of attitude is due to a desire to harass the plaintiff.

We do not see how the plaintiff can be compelled to pass through their portion of the house to enter the street. It was also argued that the partition wall need not be put up between the two portions. There can be little doubt that this attitude is motivated by a desire to make it hard for the plaintiff to live in the house. As rightly pointed out by the trial Court, defendants change their opinion like a weather cock. There is absolutely no substance in this contention and the appellants have got what they wanted and it is not open to them to turn round and say that they should get the portion already allotted to the plaintiff or that a restriction should be placed as regards the enjoyment of that portion of the plaintiff.

7. We shall now deal with the issue relating to the provision for the marriage expenses of defendants 2 and 3. The claim of the defendants in this behalf is that provision should be made out of the cash belonging to the whole family. This claim is opposed by the respondent. The point for determination is whether the marriage expenses of defendants 2 and 3 should be borne by the whole family or only by the first defendant's branch. The trial Court disallowed the claim of the defendants having taken the view that as the preliminary decree had resulted in disruption in the status of the family, the whole family was not liable to meet the marriage expenses of the two girls. Mr. Rajagopalachari canvassed this view by arguing that the preliminary decree in a suit Brought by a widow under the Hindu Women's Right to Property Act would not effect a severance in status and despite actual division the family would continue to be an undivided one. This 'proposition is contested by the counsel for the respondent. But it is unnecessary for us to go into that question as this issue can be decided on a shorter ground namely that the obligation to meet the marriage expenses of the son's daughters does not fall on the whole family.

8. On this branch of the topic, what is urgedby Mr. Rajagopalaehari is that so long as thefamily continues joint, it is the liability of allthe members of the joint family to get thedaughters in the family married. The foundationfor this contention is -- 'Ranganaiki Ammal v.Ramanuja Aiyangar', 35 Mad 723 (A) and certain remarks of Ramesam J. who delivered themajority opinion in the Pull Bench case in --'Subbayya v. Ananda Ramayya', AIR 1929 Mad 586 (B). But neither -- '35 Mad 728 (A)' nor anyof the statements in the judgment of RamesamJ. helps the appellants. X

9. In -- 35 Mad 728 (A)', the widow of a deceased coparcener performed the marriage of her daughter without the concurrence of her father-in-law and his sons and demanded the expenses of the marriage from them. As they refused to comply with the demand, she filed a suit for the recovery of the sums spent by her for the marriage. The claim was resisted on the grounds that the plaintiff was not entitled to perform the marriage herself as the defendants had not improperly or wrongly refused to perform the marriage of the plaintiff's daughter and that the plaintiff, at any rate, was not entitled to recover the expenses out of the joint family property. Both the defences were overruled by Benson and Sundara Aiyyar JJ. who held that the plaintiff was 'entitled to perform the marriage of her daughter and also recover the reasonable expenses of such a marriage out of the joint family properties. We are only concerned in this case with the decision on the second point.

The learned Judges expressed the opinion after the review of the case law on the subject that when a Hindu coparcener dies leaving an unmarried daughter, his survivors are under an obligation to meet the expenses of the marriage of his daughter out of the joint family property. We do not think the principle embodied in that pronouncement is applicable to a case of this type. In that case the coparcener did not leave any son who would have been entitled to a share in the family property and the property devolved by survivorship on his father and brothers. His widow, therefore, could not look to the share of her husband's branch and consequently the survivors were held bound to defray the expenses of the marriage out of the joint family property. But the position is altogether different when the sons of a deceased coparcener who have got their own share want a provision to be made for the marriage expenses of their sisters. We therefore think that -- '35 Mad 728 (A)' does not govern the present case.

10. Nor is there any foundation for the proposition stated by the counsel for the appellants in -- 'AIR 1929 Mad 586 (B)'. The observations in the judgment of Ramesam J. which have given rise to this argument are those contained at pp. 588, 590 & 591 of the Judgment. At p. 588 it is stated:

'But whatever may be the true view as to the liability of a father to marry his daughter considered by himself and by reason of the parental relation and apart from the possession of the joint family property. So far as the possession of the joint family is concerned, there is no doubt that the father is bound to marry his daughter, and that, not because of a religious injunction about pre-puberty marriage, but because of a better reason, namely, the daughter's right to be married is really the historical remnant of a larger right.'

Again at p. 590 it is observed:

'It is true there are cases showing that, while during the continuance of a joint family the obligation falls on the whole family, alter partition, it does not fail upon the whole family but on some branch or branches of the family.'

At p. 591 it is remarked:

'But in the case of the marriage of a son's daughters (the case put by my brother Jackson J. in his judgment), though during the continuance of the joint family the whole family must bear the expenses, still, primarily, it is the obligation of the son's branch and the father has nothing to do with it. I do not con* cede that no part of the family is liable.'

We are unable to see how these observations establish the proposition that the whole Joint family is bound to make provision out of the joint family funds for the marriage expenses of the son's daughters. In that case one of the questions that arose was whether in a suit for partition, instituted by a Hindu against his father and his step-brother, which had disrupted the coparcenary provision for the marriage expenses of the father's daughters should be made out of the joint family property. Two of the learned Judges Ramesam and Reilly JJ. took the view that despite the severance in status the eon's share was also liable for the marriage expenses of the daughter of the father in proportion to his share in the property divided, while Jackson J. expressed dissent being of opinion that during the lifetime of the father the daughters are under his care and that on partition he takes with him his personal liability to maintain them and get them married.

11. The first two passages in the judgment of Ramesam J. extracted above relate to the marriage expenses of the daughter of the father and further the second passage does not contain any expression of the opinion of the learned Judge but contains only a statement that some cases have taken the view that after partition the obligation to get the daughter married does not fall on the whole family. In the judgment, distinction is made between the marriage expenses of the father's daughter and those of the son's daughter and the learned Judge equates the position in regard to a son's daughter's marriage to the debts contracted by the son as contrasted with the father's debts. The learned Judge observed that after partition as in the case of son's debts the marriage expenses of the son's daughter

'fall upon the son's branch only and not upon the brothers' branches or upon his father. To put the matter briefly, the obligation of fin ancestor and his family would fall after partition upon all the members of the family, but the obligation of the head of a sub-branch will fall upon that branch after partition and not on , other collateral branches or upon members higher in the genealogical tree. The analogy of the debts which h well-established and well-known makes my meaning clear.'

12. It is manifest from these observations and the third passage extracted above that so far as the marriage expenses of the son's daughters are concerned, the obligation is that of the sons' branch and the father has nothing to do with it- All that the third passage conveys is that during the continuance of the joint family, the expenses of such marriages will be met out of the family funds but on partition they will be debitable to the shares of the son's branch. The learned Judges make the meaning abundantly clear by contrasting the liability of the whole of the Joint family for father's debts which are neither illegal nor immoral with the son's debts which fall only on his son's branch.

In our opinion, the marriage expenses of the son's daughters form' only the liability of his branch and not of the whole joint family unlike the case of the father's daughters. In the Full Bench case in -- 'ILR 1929 Mad 58 (B)', the view of the majority of the Judges is that the right of the daughter to her marriage expenses and maintenance is the historical remnant of the origizial right she had to a share in the property itself, That being so, the son's daughters can have no claim on the whole joint family even having regard to the historical background. The only interest they can claim is in their father's share along with their brothers. If it should be held otherwise, it will lead to unjust and inequitable results. If one brother has a number of daughters and another has none, the former will have the expenses of the marriages of all the daughters defrayed out of the joint family property and claim an equal share in the property of the undivided family along with the other brother who does not have such an advantage.

13. That it is only for the marriage expenses lof the father's daughters or the sisters that provision should be made out of the joint family funds is also evident from a passage occurring I at p. 515 in Mayne on Hindu Law and Usage, 11th Edn.:

'Provision however should be made for the marriage expenses of unmarried sisters. Yajnavalkya says: Uninitiated sisters should have their ceremonies performed by those brothers who have already been initiated, giving them a quarter of one's own share. The Smritichan-drika as well as the Dayablmga are equally clear that the separated brothers must provide a fund for the marriage expenses of their unmarried sisters. The rule in the Mitakshara that the unmarried sisters are entitled to a share of the inheritance after the death of their father has been cut down to a provision for marriage expenses and maintenance till marriage.'

It follows from this discussion that the marriage expenses of defendants 2 and 3 the daughters of the predeceased son of Ramachandra Velayudha Thevar cannot be met out of the joint family funds and that is only an obligation falling on the share of the first defendant. We, therefore, confirm the finding of the Subordinate Judge though for a different reason.

14. There remains the point whether the half share of the plaintiff in the liquid cash should be directed to be invested in Government or other securities and the plaintiff permitted only to draw out the interest thereon. The lower Court thought that the amount need not be invested in securities and it must be handed over to her having regard to the decisions which have laid down that a widow need not be called upon to furnish security when she applies for a succession certificate (vide -- 'Gurulinga Mudaliar v. Thayyanayaki Animal', AIR 1943 Mad 522 (C). We do not think that this analogy will hold good. That decision and other unreported cases referred to in the lower Court's judgment, are based upon the wording of Section 375(1) of the Succession Act.

It was observed by the learned Chief Justice in -- 'AIR 1948 Mad 522 (C)':

'......we doubt if the provision in Section 375(1) could be availed of by a presumptive reversioner who has no present interest in the whole or any part of the debts and securities covered by the succession certificate granted to a widow. The widow is under no duty to render an account to any one, least of all to the presumptive reversioner. There is no right of indemnity in a reversioner in respect of property which devolves on a Hindu widow. The reversioner is in no sense entitled to the whole or any part of the debts & securities comprised in the estate of the last maleholder, in the hands of the widow.'

15. The position of a widow claiming a share under the Hindu Women's Rights to Property Act cannot be the same as that of a widow applying for succession certificate. In the latter case she represents the whole estate and the presumptive reversioner is not entitled to any part of the income and it is for that reason it has been held that the widow cannot be compelled to furnish security. We need not dilate upon this point as in order either to require the widow to give security for the cash to be put in her possession or to direct it to be invested with liberty to the widow to enjoy only the income therefrom, it must be shown that the widow has committed acts of waste or mismanagement or intends to commit such acts.

16. As substantiating the proposition that in every case where money is allotted to a Hindu widow on partition either security should be taken from her for the protection of the corpus or that such money should be invested in securities interest from which alone should be paid to the widow, -- 'Kamala Bala v. Jiban Krishna', 52 Cal WN 270 (D) is called in aid. There in a suit for partition by a widow of a predeceased son of a previous proprietor, with regard to the money allotted to her share under the preliminary decree, the trial Court directed that it should be held in non-negotiable securities with liberty to apply to that Court in case she wanted to transfer them on the ground of legal necessity. The propriety of this order was challenged by the widow in an appeal. A Bench of the Calcutta High Court Harries C. J. and Mukherjea J. set aside that order and directed that the entire sale proceeds payable to the widow in her share should be handed over to her without any restriction or condition whatsoever.

The ratio of that decision is that so long as there is no proof of any acts of waste or anything to suggest from which a well founded apprehension of such waste could be made, there can be no justification for putting any restrictions on the enjoyment by the widow. Mukherjea J. who delivered the judgment reviewed the case law on the subject and referred to the several of the pronouncements of the Privy Council. The learned Judge has set out the principles enunciated in those rulings that in order to entitle a reversioner to induce the Court to interfere and take the property out of the hands of the widow who is in possession of it, it should be shown that there is a danger to the property from the mode in which the widow is dealing with it. No doubt reference is made to cases which contain the rule that when it is established to the satisfaction of the Court that there is a danger to the estate being wasted, relief may be given by the Court in a suit for partition and that a separate suit need not be filed for getting that relief.

17. Applying the test laid down in -- '52 Cal WN 270 (D)' and in the rulings noticed therein, we must hold that the defendants are not entitled to any relief. It has not been shown in this case that the widow has been guilty of waste or misappropriation or that the conduct of the widow could lead to any reasonable apprehension of such waste. No evidence has been let in to prove this, nor was it stated even in the written statement. We think that no restriction on the enjoyment of the money by the widow could be put in the absence of any proof of danger to the corpus allotted to share of the widow. The defendants have certainly a remedy under the law if the plaintiff is found to be guilty of waste or spoliation. For these reasons, we hold that the judgment and decree of the trial Court do not call for interference even in this respect and have to be confirmed.

18. In the result, the appeal is dismissed with costs.


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