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Shanmugasundara Mudaliar (Died) and anr. Vs. Gora Alias Peer Mohammad and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai High Court
Decided On
Reported in(1964)1MLJ304
AppellantShanmugasundara Mudaliar (Died) and anr.
RespondentGora Alias Peer Mohammad and ors.
Cases ReferredM. K. Stremann v. Commissioner of Income
Excerpt:
- .....of it, as the property in his hands was his self-acquisition and did not have the character of joint family properties. the question in the courts below, therefore, mainly turned upon the character of the property obtained by kuppuswami under the settlement of his mother's sister. both courts below have held that notwithstanding the fact that kuppuswami got the property under a settlement of his mother's sister, he treated the properties as joint family properties and that therefore it was not competent for him to execute a will. they also found that since the two sons of kuppuswami would each be entitled to a half-share in the property, the sale deed executed by each of them would pass what they were entitled to, but the equities between the alienees and the sharers should be.....
Judgment:

K. Veeraswami, J.

1. The plaintiff who failed in both the Courts below is the appellant He, in his capacity as an executor appointed by one Kuppuswami under his will, dated 9th May, 1948, brought the suit for redemption of an usufructuary mortgage, dated 13th February, 1958, executed by the testator and his sons, defendants 10 and 12. The suit was resisted by the 8th defendant on the ground that he purchased the equity of redemption from the sons of the testator and also the nth defendant, the son of the 10th defendant, and redeemed the mortgage. By the will, the testator gave a third share to each of his two sons and the remaining one-third share to his three daughters. On 4th May, 1944, the 10th defendant and his son sold to the 8th defendant a half-share in the property covered by the othi. By another sale deed, dated 13th June, 1949, the 12th defendant, the other son of Kuppuswami, sold his half share to the 13th defendant, from whom the 8th defendant also purchased that half. The plaintiff's case was that Kuppuswami having got the property covered by the othi under a settlement by his mother's sister on 3rd September, 1912 he was competent to execute a will in respect of it, as the property in his hands was his self-acquisition and did not have the character of joint family properties. The question in the Courts below, therefore, mainly turned upon the character of the property obtained by Kuppuswami under the settlement of his mother's sister. Both Courts below have held that notwithstanding the fact that Kuppuswami got the property under a settlement of his mother's sister, he treated the properties as joint family properties and that therefore it was not competent for him to execute a will. They also found that since the two sons of Kuppuswami would each be entitled to a half-share in the property, the sale deed executed by each of them would pass what they were entitled to, but the equities between the alienees and the sharers should be adjusted not in the present suit for redemption, but only in a suit for partition. On that view, the trial Court, the lower appellate Court concurring with it, dismissed the suit.

2. The executor under the will filed this Second Appeal, but, pending its final disposal he died. It appears that under the terms of the will of Kuppuswami the executor was entitled to nominate a person to function as an executor after his death and that, in exercise of that power, the 2nd appellant became an executrix and has come on record. It is argued by Sri Champakesa Aiyengar for the appellant that the finding of the Courts below, as to the character of the property, is wrong, and that they have failed to follow the correct principles of law applicable. Learned Counsel refers to Naina Pillai v. Daivanani Ammal : AIR1936Mad177 in which the principle was laid down that a person who alleged that the property is joint family property must show that the owner had voluntarily thrown the property into the joint stock with the intention of abandoning all separate claims on it. It seems to me that the question is one of intention as to whether the person concerned meant to treat the particular properties as separate or as joint family properties, and has therefore to be decided on the facts in each case. The intention may be evident from several circumstances. Blending may be one. But that is not the only means by which a member of a joint family may treat his self-acquisition as joint family property. An unequivocal declaration on his part that he would treat the property as joint family property, though it was his self-acquisition, would be quite sufficient to change the character of the property. Anantanarayanan and Jagadisan, JJ., in Manicka Mudaliar v. Thangavelu (1963) 2 M.L.J. 297, summed up the law thus:

It is now settled law that a separate property can be converted into a joint family asset by unambiguous and unequivocal declaration. We need only refer to the decision of this Court in M. K. Stremann v. Commissioner of Income-tax : [1961]41ITR297(Mad) , where it was held that the declaration in a partition deed amounted to an unequivocal declaration that all the properties dealt with in the partition were treated as properties available for division between the members of the family.

3. In the instant case, after Kuppuswami got the properties under the settlement of his mother's sister, he divided them as between himself and his brothers. After this, Kuppuswami dealt with his share by executing several usufructuary mortgages in which his sons were joint executants and in which recitals were found to the effect that the property mortgaged was ancestral (Poorviga Sothu). The combined effect of these two facts, to my mind, undoubtedly pointed to the fact that Kuppuswami unequivocally declared that the properties he got under the settlement of his mother's sister should be treated as joint family property. That, as I said, was the finding arrived at by both the Courts below, which I uphold.

4. On that view, the Second Appeal fails and is dismissed with costs of the 8th defendant. No leave.


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