Skip to content


Mallela Venkatarayudu and ors. Vs. Mallela Sivaramakrishnayya and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in153Ind.Cas.368
AppellantMallela Venkatarayudu and ors.
RespondentMallela Sivaramakrishnayya and ors.
Cases ReferredRamalinga Annavi v. Narayana Annavi
Excerpt:
hindu law - joint family--partition--application for insolvency or adjudication of member, whether effects severance of status--suit by purchaser of insolvent's share for partition--purchaser's right to mesne profits--unmarried co-parcener's right to marriage expenses. - .....properties into seven shares and delivery of one seventh share to the plaintiffs together with mesne profits, which modified the preliminary decree for partition passed by the subordinate judge of guntur in o.s. no. 55 of 1922.2. the facts necessary for the disposal of this second appeal are briefly these. the suit properties belong to a joint hindu family consisting of defendants nos. 2 to, 9. the 2nd defendant is the father and defendants nos. 3 to 8 are his sons. the 9th defendant is the son of the 3rd defendant. in i.p. no. 14 of 1915 on the file of the district court of guntur the 3rd defendant was adjudicated as insolvent and the 10th defendant was appointed the official receiver. in the course of his administration of the insolvent's estate, the 10th defendant sold by public.....
Judgment:

1. This second appeal by defendants Nos. 2 and 4 to 9 is against the decree of the District Judge of Guntur in Appeals Nos. 50 and 77 of 1925 directing the partition of the suit properties into seven shares and delivery of one seventh share to the plaintiffs together with mesne profits, which modified the preliminary decree for partition passed by the Subordinate Judge of Guntur in O.S. No. 55 of 1922.

2. The facts necessary for the disposal of this second appeal are briefly these. The suit properties belong to a joint Hindu family consisting of defendants Nos. 2 to, 9. The 2nd defendant is the father and defendants Nos. 3 to 8 are his sons. The 9th defendant is the son of the 3rd defendant. In I.P. No. 14 of 1915 on the file of the District Court of Guntur the 3rd defendant was adjudicated as insolvent and the 10th defendant was appointed the Official Receiver. In the course of his administration of the insolvent's estate, the 10th defendant sold by public auction the one-seventh share of defendants Nos. 3 and 9 in the suit properties. The 1st plaintiff purchased one-seventh share in certain specified lots under the sale deed executed by the Official Receiver, Ex. A dated the February 11, 1919. The one-seventh share in the other lots was sold to the 1st defendant, the son-in-law of the 2nd defendant, under the sale deed Ex. B dated February 12, 1919. The 2nd plaintiff is the son of the 1st plaintiff. The 1st plaintiff conveyed a portion of his properties to the 3rd plaintiff by a registered sale deed dated October 2, 1920.

3. The suit out of which this second appeal arises was instituted by the plaintiffs, for partition of the suit properties into seven equal shares and delivery to them, of the one-seventh share purchased by them together with mesne profits. Issues Nos. 3 and 5 in the suit, with the decision of which we are mainly concerned, in the second appeal are as follows:

Issue 3:-Whether the plaintiffs are entitled to any, and, if so, to what mesne profits against the defendants Nos. 2 and 4 to 8?

Issue 5:-Whether the defendants Nos. 7 and 8 are entitled to have provision made out of the joint estate for the-expenses of their marriage.

4. With respect to the 3rd issue the plaintiffs contended that they are entitled to get mesne profits from the date of their, purchase of the share of the properties-claimed by them, i.e., from February 11, 1919, while the defendants contended that they were entitled to mesne profits only from the date of the preliminary decree for partition, i.e., from November 12, 1924. In Maharaja of Bobbili v. Venkatata ramanjulu Naidu 25 Ind. Cas. 585 : A.I.R : 1915 Mad. 453 : 39 M. 265 : 16 M.L.T. 181 : 27 M.L.J. 409 it was held, disapproving some previous decisions, that a purchaser of an undivided share of a member of a joint Hindu family does not thereby become a tenant-in-common with the other members and hence he is not-entitled to any mesne profits in respect of his share for the period between the date of his purchase and the date of his suit for partition. Relying mainly on this decision the learned Subordinate Judge held that the plaintiffs were entitled to claim mesne profits from the date of the suit. It will be observed that he disallowed the contentions of both the plaintiffs and the defendants on this point.

5. With respect to Issue No. 5 it was contended by the defendants that the marriage expenses of defendants Nos. 7 and 8 should be provided for before the properties are equally partitioned. The plaintiffs contended that no such provisions out of the joint family funds could be made. In Gopalan v. Venkataraghavulu 31 Ind. Cas. 574 : A.I.R. 1915 Mad. 1027 : 40 M. 632 : 29 M.L.J. 710, it was held following Srinivasa Iyengar v. Thiruvengadathaiyengar 23 Ind. Cas. 264 : 38 M. 556 : A.I.R. 1914 Mad. 226 : 15 M.L.T. 307 and dissenting from Narayanan Annavi v. Ramalinga Anni 36 Ind. Cas. 428 : A.I.R. 1917 Mad. 477 : 39 M. 567 that in partition decrees provision should be made for the marriage expenses of the unmarried members of the family. Following this decision the learned Subordinate Judge held that provision has to be made out of the joint family estate for the marriage of the defendants Nos. 7 and 8. In the result the Subordinate Judge passed a decree directing the delivery of one-seventh share to the plaintiffs together with mesne profits from the date of the plaint making a portion of the marriage expenses a charge on the properties allotted to them.

6. Against the above decree, both the plaintiffs and the defendants preferred appeals to the District Court. On the question of mesne profits raised in Issue No. 3 the learned District Judge held that the plaintiffs were entitled to claim mesne profits from the date when they purchased the suit properties, he being of opinion that the filing of the insolvency petition must be taken to involve a declaration of severance of the joint family status and that in consequence the vendee was a tenant-in-common from the date of the sale and is entitled to profits from that date. On the question of marriage expenses raised in Issue No. 5 the learned District Judge held relying on Ramalinga Annavi v. Narayanan Annavi 68 Ind. Cas. 451 : 45 M. 489 : A.I.R. 1922 P.C. 203 : 49 I.A. 168 : 30 M.L.T. 255 : (1922) M.W.N. 399 : 26 C.W.N. 929 : 43 M.L.J. 428 : 18 L.W. 633 : 21 Bom. L.R 1209 : 20 A.L.J. 639 : 37 C.L.J. 15 that the unmarried members were not entitled to have any provision made for the expenses of their marriage. In his view this decision superseded the decisions in Srinivasa Iyengar v. Thiruvengadathaiyengar 23 Ind. Cas. 264 : 38 M. 556 : A.I.R. 1914 Mad. 226 : 15 M.L.T. 307 and Gopalan v. Venkataraghavalu 31 Ind. Cas. 574 : A.I.R. 1915 Mad. 1027 : 40 M. 632 : 29 M.L.J. 710. In the light of the above findings the decree of the Sub-ordinate Judge was modified by the District Judge. It will be observed that on both the questions at issue between the parties the District Judge accepted in toto the contention of the plaintiff.

7. In second appeal Mr. Raghava Rao argues that the decision of the learned District Judge is wrong on both the questions and that he should have held that the plaintiffs are entitled to mesne profits only from the date of the preliminary decree and that their properties should be charged with the payment of the marriage expenses of defendants Nos. 7 and 8.

8. On the first point, namely that relating to mesne profits, we have no doubt that the learned District Judge's decision that the filing of an insolvency petition brings about a severance of joint family status cannot be upheld. No authority in support of the position is mentioned in the lower Court's judgment, nor has any been quoted before us by the learned Counsel justifying the conclusion. On principle, we cannot see how the filing of an application for insolvency can be taken to involve a declaration of severance of the joint family status. The immediate object of a petition ill insolvency by a debtor is to get exemption from arrest; and it must be obvious that a stranger cannot by any conduct of his enforce a severance of the joint family status. To hold that the filing of an insolvency application by a member of a joint Hindu family amounts to an unequivocal and unambiguous declaration to sever from the family, is to states proposition supported neither by authority nor by principle. No doubt the filing of a petition in insolvency followed by adjudication gives certain legal rights to the Official Receiver with respect to the share of the property belonging to the insolvent. His share vests in the Official Receiver and the disposing, power of the insolvent with respect to his son's share for paying debts not contracted for an immoral purpose also vests in him. But this result does not bring about any severance in the joint family status of the insolvent. We must hold that neither the filing of an insolvency petition nor the adjudication of the applicant as, an insolvent can sever the joint family status and that in consequence we cannot hold the vendee was a tenant-in-common from the date of the sale and is entitled to profits from that date,

9. In our Court it has teen held that the Official Assignee is entitled on the insolvency of any co-parcener to joint possession with the other co-parceners: See Official Assignee of Madras v. Ramachandra Iyer : (1922)43MLJ569 and Venkataraman v. Chokidar 109 Ind. Cas. 516 : 51 M. 667 : A.I.R. 1028 Mad. 531 : 55 M.L.J. 163 and also Mulla's Hindu Law, p. 311. In the latter of the two cases just mentioned, namely Venkataraman v. Chokidar 109 Ind. Cas. 516 : 51 M. 667 : A.I.R. 1028 Mad. 531 : 55 M.L.J. 163 the same privilege of joint possession with respect to an insolvent's share is accorded to an alienee from the Official Receiver also. It is clear law that one co-parcener entitled to joint possession with another co-parcener cannot claim mesne profits unless he shows that he has been excluded from enjoyment of the properties by the other coparcener. It follows therefore that unless it is shown that on the date of the sale by the Official Receiver possession of the properties was demanded by the vendee and refused by the appellants it cannot be held that the plaintiffs are entitled to mesne profits from the date of the sale. In this case the question of exclusion was not raised as a specific point in issue and no evidence has been adduced on it, though there is a statement in the, plaint to the effect that

after the purchase of the properties in spite of repeated demands the defendants have not chosen to effect a division of the properties or to put the plaintiffs in possession, etc.

10. But it is clear that possession may well be taken to have been demanded and refused from the date of the plaint. We would therefore hold, agreeing with the Subordinate Judge though on a different ground, that the plaintiffs are entitled to mesne profits from the contesting defendants from the date of plaint. The present case being one of an alienation by the Official Receivers ho is the representative of the insolvent, the applicability of Maharaja of Bobbili v. Venkataramanujulu Naidu 25 Ind. Cas. 585 : A.I.R 1915 Mad. 453 : 39 M. 265 : 16 M.L.T. 181 : 27 M.L.J. 409 relied on by the learned Subordinate Judge, where it was held that

a purchaser of an undivided share of a joint Hindu family does net thereby become a tenant-in-common with the other members and hence he is not entitled to mesne profits in respect of his share from the date of his purchase.

does not arise for consideration, and it is conceded that the argument that the purchaser is entitled to mesne profits only from the date of the preliminary decree for partition cannot be pressed, the Official Assignee and the purchaser from him of the insolvent's property being held to be entitled, to joint possession along with the co-parcener.

11. The next point relates to the question whether provision should be made in the decree for the marriage expenses of two of the brothers of the insolvent, namely defendants Nos. 7 and 8. In summarising the conclusions arrived at by the lower Courts, the decisions bearing on the question have already been mentioned. The decisions in Srinivasa Iyengar v. Thiruvengadathaiyengar 23 Ind. Cas. 264 : 38 M. 556 : A.I.R. 1914 Mad. 226 : 15 M.L.T. 307 and Gopalan v. Venkataraghavalu 31 Ind. Cas. 574 : A.I.R. 1915 Mad. 1027 : 40 M. 632 : 29 M.L.J. 710 support the contention of the appellants that such provision should be made before the properties are finally partitioned. In Narayanan Annavi v. Ramalinga Annavi 68 Ind. Cas. 451 : 45 M. 489 : A.I.R. 1922 P.C. 203 : 49 I.A. 168 : 30 M.L.T. 255 : (1922) M.W.N. 399 : 26 C.W.N. 929 : 43 M.L.J. 428 : 18 L.W. 633 : 21 Bom. L.R 1209 : 20 A.L.J. 639 : 37 C.L.J. 15 (P.C.) which refused to follow Srinivasa Iyengar v. Thiruvengadathaiyengar 23 Ind. Cas. 264 : 38 M. 556 : A.I.R. 1914 Mad. 226 : 15 M.L.T. 307 Sankaran Nair and Old field, JJ., held that an unmarried cc-parcener is not entitled to have an anticipatory provision made for the expenses of his future marriage at partition; but they allowed to claim for the expenses of the marriage that took place before the decree in the first Court on the ground that

joint family status was not dissevered until the decree for partition and that the joint family continued until then.

12. This decision was taken up in appeal to the Privy Council and the judgment of their Lordships of the Judicial Committee is reported in Ramlinga Annavi v. Narayana Annavi 68 Ind. Cas. 451 : 45 M. 489 : A.I.R. 1922 P.C. 203 : 49 I.A. 168 : 30 M.L.T. 255 : (1922) M.W.N. 399 : 26 C.W.N. 929 : 43 M.L.J. 428 : 18 L.W. 633 : 21 Bom. L.R 1209 : 20 A.L.J. 639 : 37 C.L.J. 15 On the point under consideration their Lordships, following Girja Bai v. Sadashiv Dhundiraj 37 Ind. Cas. 321 : 43 C. 1931 : A.I.R. 1916 P.C. 104 : 43 I.A. 151 : 12 N.L.R 113 : 20 C.W.N. 1085 : 14 A.L.J. 822 : 20 M.L.T. 78 : (1916) 2 M.W.N. 65 : 18 Bom. L.R. 621 : 4 L.W. 114 : 24 C.L.J. 207 : 31 M.L.J. 455 (P.C.) which did not exist when Narayana Annavi v. Ramalinga Anni 36 Ind. Cas. 574 : A.I.R. 1915 Mad. 1027 : 40 M. 632 : 29 M.L.J. 710 was decided, held that the institution of a suit for partition by a member of a joint Hindu family effects a severance of the joint status of the family and a member of the family who is then unmarried is not entitled to have a provision made in the partition for his marriage expenses although he marries before the decree in the suit is made. According to this decision the obligation to provide for future marriages ceased on severance of the joint family status. This decision is relied on by the plaintiffs-respondents in support of their contention. The appellants argue that the decision of I he Privy Council does not supersede the decision in Srinivasa Iyengar v. Thirmengadathaiyengar 23 Ind. Cas. 264 : 38 M. 556 : A.I.R. 1914 Mad. 226 : 15 M.L.T. 307 and Gopalan v. Venkataraghavalu 31 Ind. Cas. 574 : A.I.R. 1915 Mad. 1027 : 40 M. 632 : 29 M.L.J. 710 and further that the Privy Council decision is inapplicable to the present case, inasmuch as the case before the Judicial Committee dealt with the question of the expenses of marriage in a suit for partition instituted by some of the co-parceners against the remaining members of the family, whereas the present suit is not one instituted by a co-parcener. In our opinion both the arguments should be overruled. Though the two decisions in Srinivasa Iyengar v. Thiruvengadathaiyengar 23 Ind. Cas. 264 : 38 M. 556 : A.I.R. 1914 Mad. 226 : 15 M.L.T. 307 and Gopalan v. Venkataraghavalu 31 Ind. Cas. 574 : A.I.R. 1915 Mad. 1027 : 40 M. 632 : 29 M.L.J. 710 are not actually referred to in the judgment of the Privy Council, it is clear from the arguments that both the decisions were brought to the notice of their Lordships and then they enunciated the correct principle to be applied to cases of this kind, that principle being this, that after severance of joint family status had been effected there is no obligation on the joint family in respect of the future marriage of a co-parcener who was unmarried at the time of the severance. This being the correct principle to be applied, we think that the previous decision of this Court in Srinivasa Iyengar v. Thiruvengadathaiyengar 23 Ind. Cas. 264 : 38 M. 556 : A.I.R. 1914 Mad. 226 : 15 M.L.T. 307 and Gopalan v. Venkataraghavalu 31 Ind. Cas. 574 : A.I.R. 1915 Mad. 1027 : 40 M. 632 : 29 M.L.J. 710 should be considered to be overruled by the Privy Council decision in Ramalinga Annavi v. Narayana Annavi 68 Ind. Cas. 451 : 45 M. 489 : A.I.R. 1922 P.C. 203 : 49 I.A. 168 : 30 M.L.T. 255 : (1922) M.W.N. 399 : 26 C.W.N. 929 : 43 M.L.J. 428 : 18 L.W. 633 : 21 Bom. L.R 1209 : 20 A.L.J. 639 : 37 C.L.J. 15 with respect to the point under consideration. We are also of the opinion that the principle of the Privy Council decision would apply to the present case also, inasmuch as the Official Receiver as the representative of the insolvent co-parcener occupies the position of a co-parcener himself, and the alienee from him stands in his shoes and may therefore be said to be in the position of a co-parcener. We must therefore hold, agreeing with the learned District Judge, that provision should not have been made in the decree for the marriages of defendants Nos. 7 and 8. In the result the lower Court's decree will be modified in he light of the above findings. The parties will pay and receive proportionate costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //