A. Muraleedharan and Parveen v. A. Venkitesh and Usha

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 28TH DAY OF JUNE 2013/7TH ASHADHA, 193 SA.No. 1 of 2003 ( ) --------------------- AS 154/2001 of ADDL. DISTRICT COURT, ,ALAPPUZHA. OS 175/1996 of PRINCIPAL SUB COURT,ALAPPUZHA APPELLANT(S)/APPELLANTS/PLAINTIFFS: ------------------------------------- ## 1. A.MURALEEDHARAN, S/O.ANANTHA SHENOY, RESIDING IN DIVYA, FROM SREEKARA MADOM, A.N.PURAM ALAPPUZHA. ## 2. PARVEEN,S/O.MURALEEDHARAN, DIVYA, A.N.PURAM ALAPPUZHA (BY POWER OF ATTORNEY HOLDER SANTHAKUMARI W/O.MURALEEDHARAN.) BY ADV. SRI.T.M.ABDUL LATHEEF RESPONDENT(S)/RESPONDENTS/DEFENDANTS): ------------------------------------------- ## 1. A.VENKITESH,S/O.ANANTHA SHENOY, SREEKARA MADOM, A.N.PURAM, ALAPPUZHA. ## 2. USHA, W/O.A.VENKITESH, SREEKARA MADOM, A.N.PURAM, ALAPPUZHA. R,R1 & R2 BY ADV. SRI.K.AZAD BABU THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 21-06-2013, THE COURT ON 28-06-2013 DELIVERED THE FOLLOWING: ## **C.R.** ## **M.L.JOSEPH FRANCIS, J.** **----------------------------------------------S.A. No.1 of 2003 ----------------------------------------------Dated 28[th] June, 2013.** ## **J U D G M E N T** This Second Appeal is filed by the plaintiffs 1 and 2 in O.S.No.175 of 1996 on the file of Principal Sub Court, Alappuzha, who were appellants 1 and 2 in A.S.No.154 of 2001 on the file of the Additional District Court, Alappuzha. Respondents 1 and 2 herein were the defendants 1 and 2 in the Original Suit and respondents 1 and 2 in the appeal. 2. O.S.175 of 1996 is a suit for partition. The plaint averments are briefly as follows : The first plaintiff is the elder brother of the first defendant. They are the children of late Anantha Shenoy. The second plaintiff is the son of the first plaintiff and the second defendant is the wife of the first defendant. The parties are governed by Hindu Mithakshara Law. The plaint schedule properties are joint Hindu family properties and plaint schedule items 1 to 9 were allotted to the share of late Krishna Shenoy, who is the grandfather of the first plaintiff and the first defendant as per partition deed No.2820 dated 24.10.1105 M.E. of SRO, Alappuzha. Krisha Shenoy as 2 S.A. No.1 of 2003 the Manager of the joint family consisting of his sons and grandsons, was managing the property. Plaint item No.10 was acquired by him out of the joint family funds. The plaint B schedule properties are the movable properties belonging to their joint family. Krishna Shenoy died in the year 1960 and his rights devolved upon the first plaintiff, first defendant and their father Anantha Shenoy, who are the surviving co-parceners. The second plaintiff has got right over the joint family properties by birth. After coming into force of the Kerala Joint Hindu Family System (Abolition) Act, 1975, the joint tenancy was ceased and they became tenants-in-common. The wife of Anantha Shenoy, who is the mother of the first plaintiff and first defendant also died. So, the right of Anantha shenoy devolved upon the first plaintiff and the first defendant alone. Therefore, the plaintiff and the first defendant are entitled to 3/8 shares each and the second plaintiff is entitled to 2/8 shares over the plaint schedule property. Plaint item No.1 in A schedule is the family house. Plaint item No.2 in A schedule is a building separately constructed by the 1[st] plaintiff. The 2[nd] defendant 3 S.A. No.1 of 2003 was running a kids school without the knowledge and concurrence of the plaintiffs in the building in A schedule item No.1 which is injurious to that item. It is accordingly, the plaintiffs demanded partition of the property and allotment of their due share. Though the defendants initially agreed to, later they turned down. The 2[nd] defendant has also filed a suit for injunction against the first plaintiff, alleging that she is the tenant of the building. So, the plaintiffs brought the suit for partition and separate possession of their due share together with the future mesne profits @ `7,631/- per year to the first plaintiff and at `5,087/- per year to the second plaintiff. 3. The defendants resisted the suit. They filed a joint written statement contending as follows : The suit is not maintainable. The plaint schedule properties are not joint family properties. The partition deed No.2820/1105 is not in respect of joint family properties. The property obtained by Krishna Shenoy under the partition deed of 1105 was held by him as his absolute property. The properties were never held by Krishna Shenoy as joint family property. He was not the 4 S.A. No.1 of 2003 Manager of any joint family property. Plaint item No.10 in A schedule was not acquired out of any joint family fund. It was purchased by him, utilizing his own funds. Upon his demise the assets held by him inherited by his only son Anantha Shenoy. When Anantha Shenoy died, the properties devolved upon his two children viz., first plaintiff and the first defendant. Hence, the 2[nd] plaintiff has no right over the properties. The second plaintiff is not entitled to any share over the plaint schedule properties. There is no family house as shown as item No.1 in plaint A schedule. All the movables are not in existence. The allegation in the plaint that item No.2 building in A schedule was constructed by the first plaintiff out of his funds is not true. The said building is liable to be partitioned. The second defendant is the tenant of item No.2 building. The plaintiffs are not entitled to mesne profits. The quantum of mesne profits claimed is also excessive. The plaint schedule property will yield annual income of less than `3,000/- only. The suit is bad for partial partition. The first plaintiff has omitted to include 22 cents of land adjoining to the plaint schedule item No.1, which S.A. No.1 of 2003 5 was obtained by late Krishna Shenoy as per sale deed No.1177 dated 24.5.1107 M.E. of Alappuzha SRO. That property is also liable for partition and sought partition of the properties scheduled in the written statement by way of counter claim. The shares stated in the plaint are not correct. If at all the properties are partible, the first defendant is entitled to ½ share. Plaintiffs 1 and 2, who form one branch together are entitled to ½ share. Hence, the defendants wanted a decree in accordance with their contentions. 4. Plaintiff filed a replication transversing the contentions raised by the defendant. In the replication, it is contended that 22 cents of property scheduled in the written statement absolutely belonged to the first plaintiff as per purchase certificate No.3619 dated 15.1.1977 issued by the Land Tribunal, Alappuzha in O.A.No.987/1976. 5. Before the Sub Court, no oral evidence was adduced from both sides. Exts.A1 to A6, B1 to B4 and C1 and C2 were marked. The learned Sub Judge, on considering the evidence on record, found that the plaintiffs together are 6 S.A. No.1 of 2003 entitled to get ½ share and the first defendant is entitled to get the other ½ share and the suit was decreed and a preliminary decree for partition was passed as follows : “Plaint A schedule items 1 to 10 including plaint schedule item No.11 will be partitioned by metes and bounds into two separate shares and the plaintiffs together are entitled for ½ share and the 1[st] defendant is entitled for the other ½ share. The movable items which are shown in the plaint B schedule and which are found by the commissioner and mentioned in Ext.C2 report would also be partitioned between the plaintiffs on the one hand and the 1[st] defendant on the other side equally. The property scheduled in the counter claim preferred by the 1[st] defendant also would be partitioned between the plaintiffs and the 1[st] defendant and the plaintiffs together are entitled for ½ share and the other ½ share is entitled by the 1[st] defendant. Ext.C2 will be appended to the decree.” Being dissatisfied with the judgment and decree, plaintiffs 1 and 2 filed A.S.No.154 of 2001 before the Additional District Court, Alappuzha, which was dismissed, confirming the judgment and decree of the Sub Court. Against that judgment and decree, the appellants/ plaintiffs filed this Second Appeal. 6. The main questions of law that arise for S.A. No.1 of 2003 7 determination, on hearing both sides, are the following : (i) Whether the lower courts came to the correct conclusion regarding the right of the appellants who already became tenants in common and whose case will not come under Section 4(2) of the Joint Hindu Family System (Abolition) Act, 1975? (ii) Whether Section 4(1) of the Joint Hindu Family System (Abolition) Act creates per capita division and sub section (2) in any manner excluded such per capita division in the case of undivided Hindu family governed by Mitakshara law and the interpretation given by this Court in the decision reported in Dharmambal v. Lekshmi Ammal requires reconsideration? 7. Heard the learned senior counsel appearing for the appellants and the learned counsel appearing for the respondents. 8. There is no dispute that the parties are governed by Hindu Mitakshara Law. The relationship between the parties is also admitted. The first plaintiff and the first defendant are direct brothers and children of one Anantha Shenoy. Anantha Shenoy is the son of deceased Krishna Shenoy. The second 8 S.A. No.1 of 2003 plaintiff is the son of first plaintiff. The main dispute in this Second Appeal is with regard to the quantum of shares to which the plaintiffs and first defendant are entitled. According to the appellants/ plaintiffs, they together are entitled to get 5/8 shares in the plaint schedule properties available for partition and the first defendant is entitled to get the remaining 3/8 share. But, according to the respondents, the plaintiffs together are entitled to get ½ share and the first defendant is entitled to get the remaining ½ share. 9. 'Per stripes' and 'per capita' are the terms in the Law of Succession fixing the shares the descendants or other beneficiaries are to take. If the share is per capita, all in the designated class take equally, by heads. If it is per stripes, they take by branches of family, for example, grandchildren jointly taking their parents' share. Thus, the general mode of division among heirs of the same degree of relationship is per capita. In per capita, the property is divided among all the claimants entitled to it in equal shares. 10. A Hindu co-parcenary is much narrower body 9 S.A. No.1 of 2003 than the joint family. It includes only those persons who acquire by birth an interest in the joint or co-parcenary property. They are sons, grandsons and great grandsons of the holder of the joint property for the time being. In other words, three generations next to the holder in unbroken male descent. The reason why co-parcenership is so limited is to be found in the peculiar tenet of the Hindu religion that only male descendants upto three degrees can offer spiritual ministration to an ancestor. 11. So far as Mitakshara System is concerned, right in the family property is acquired by birth. In this system, a family is a unit and individual rights are not recognised. As a rule females have no rights of succession to the family property. The rights to property pass to the male members by survivorship. Only males can be co-parceners. 12. In Mulla's Principles of Hindu Law 17[th] Edition Volume 1 at page 511, the principles regarding allotment of shares are stated as follows : “§ 321. Shares on partition -- On a partition between the members of a 10 S.A. No.1 of 2003 joint family, shares are allotted according to the following rules :-- - (1) On a partition between a father and his sons each son takes a share equal to that of the father. Thus if a joint family consists of a father and three sons, the property will be divided into four parts, each of the four members taking one- forth. - (2) Where a joint family consists of brothers, they take equal shares on a partition. - (3) Each branch takes per stripes (that is, according to the stock) as regards every other branch, but the members of each branch take per capita as regards each other. This rule applies equally whether the sons are all by the same wife or by different wives [Illustration (a) and (b)] (4) On the death of a coparcener leaving male issue, his right to a share on partition is represented by his male issue, that is, it passes to his male issue, provided such issue be within the limits of the coparcenary. This rule was modified by the Hindu Women's Rights to Property Act, 1937. It must now be read in the context of s.6 of the Hindu Succession Act 1956, and particularly the proviso to that section. Reference may be made to the notes under that section _post_ . The Illustration below must be read in the light of what is stated above. 11 S.A. No.1 of 2003 ## Illustration (a) _A_ dies leaving a son B, two grandsons C[1] and C[2] , there great-grandsons F[1] , F[2] and F[3] and one great-great grandson K. A (dead) _______________________________I_________________________ |I|I||I<br>|I| |---|---|---|---|---| |B|C(dead)||D (dead)<br>|E(dead)| |___________I___________||||||| |I|I||F (dead)|G (dead)| |C1|C2|_______|______|||| |||I|I<br>I|H (dead)| |||F1F2F3||I| |||||K| Here there are four branches of the joint family represented respectively by the four sons of _A_ and their descendants. _E_ 's branch takes nothing as _K_ , the only surviving members of that branch, is outside the limits of the coparcenary, being beyond the fourth degree of descent from _A_ , the common ancestor (§ 215). The joint property will therefore be divided per stripes into three parts corresponding to the remaining three branches, each branch taking 1/3. The result is that _B_ will take 1/3 C[1] and C[2] will take the one-third share of _C_ equally between them, each taking ½ of 1/3, that is 1/6 and F[1] , F[2] and F[3] will take the one-third share of _D_ equally between them each taking 1/3 of 1/3, that is 1/9.” 13. In the present case, deceased Krishna Shenoy is 12 S.A. No.1 of 2003 the common ancestor. Deceased Anantha Shenoy is his son. The first plaintiff and the first defendant are the children of Anantha Shenoy. So, they constitute a Mitakshara coparcenary. The second plaintiff is the son of first plaintiff and he is in the third degree. Therefore, the second plaintiff is also a coparcener. According to the plaintiffs, since the death of Krishna Shenoy, Anantha Shenoy and his children,(first plaintiff and first defendant) and the son of first plaintiff (second plaintiff), who are also coparceners were alive on the date of commencement of the Kerala Joint Hindu Family System (Abolition) Act 1975 (for short, 'the Act')on 1.12.1976, they are entitled to get one share each. The learned counsel for the appellants argued that since the death of Anantha Shenoy was on 23.10.1980, after the commencement of the above Act, his ¼ share devolved upon his children, i.e., the first plaintiff and the first defendant. According to the learned counsel for the appellants, the first plaintiff and the first defendant are entitled to get 3/8 share each and the second plaintiff is entitled to get the remaining 2/8 share and thus, according to the appellants, 13 S.A. No.1 of 2003 they altogether are entitled to get 5/8 share. But, the learned counsel for the respondents, relying on the decision reported in **Dharmambal v. Lakshmi Ammal** (2002(2) KLT 843), argued that the plaintiffs 1 and 2 together will get ½ share and the remaining ½ share will go to the first defendant. 14. The Kerala Joint Hindu Family System (Abolition) Act 1975 came into force on 1.12.1976. The bill was published in the Kerala Gazette dated 19.6.1973. In the statement of objections and reasons, it is stated as follows : “3. The Kerala Law Commission in its First Report has considered the question of unification of the personal Laws of the Hindus other than those governed by the Mitakshara Law or the Kerala Namboodiri Act, 1958. As regards Tarwad and its management and partition, the Kerala Law Commission in its First Report has recommended that a uniform Law applicable to all Hindu Marumakkathayees and other Hindus who are not governed by the Kerala Namboodiri Act, 1958 or the Mitakshara Law may be enacted abolishing joint family system by replacing joint tenancies by tenancies in common as if a partition has taken place among all the members of the Joint family on a per capita basis. The Commission has also furnished a draft Bill for this purpose. 4. In its second Report the Law Commission considered the 14 S.A. No.1 of 2003 question of bringing the Hindus governed by the Mitakshara Law or the Kerala Namboodiri Act, 1958 within the scope of the proposed legislation for abolition of Joint Family System. The Commission recommended that -- (i) The Joint Family System among the Hindus governed by the Kerala Namboodiri Act, or the Mitakshara Law be abolished by legislation replacing joint tenancies by tenancies in common; (ii) among the Namboodiries all male and female members of the Illom do become co-owners as on a given date each taking an equal share on a per capita basis; and (iii) among the Hindus governed by the Mitakshara Law, all members of the joint family who are entitled to shares if a partition takes place on a given date be co-owners, their shares being what they would be entitled to on such a partition. A revised draft Bill for the abolition of the Joint Family System among all Hindus was also proposed by the Commission in its second Report. The revised Bill covers the matters proposed to be provided in the draft Bill on Joint Family System furnished in the First Report of the Commission.” Section 2 of the Act defines joint Hindu family. The term takes in all Hindu Families with the community of property, including tarwards and tavazhies of Marumakkathayees, Kutumbas and Kavarus of Aliyasanthanams, illoms of Namboodiris and undivided Hindu families governed by the Mitakshara law. 15 S.A. No.1 of 2003 According to section 3, after the coming into force of the Act, birth in the family of the ancestor, by itself, will not confer any right to property. Section 4 puts, an end to the joint character of family property converting joint property into co-ownership property. ## 15. Section 4 of the Act reads as follows : “4. Joint tenancy to be replaced by tenancy in common :- (1) All members of an undivided Hindu family governed by the Mitakshara law holding any coparcenary property on the day this Act comes into force shall with effect from that day, be deemed to hold it as tenants-in-common as if a partition had taken place among all the members of that undivided Hindu family as respects such property and as if each one of them is holding his or her share separately as full owner thereof : Provided that nothing in this sub-section shall affect the right to maintenance or the right to marriage or funeral expenses out of the coparcenary property or the right to residence, if any, of the members of an undivided Hindu family, other than persons who have become entitled to hold their shares separately, and any such right can be enforced as if this Act had not been passed. (2) All members of a joint Hindu family, other than an undivided Hindu family referred to in sub-section (1), holding any joint family property on the day this Act comes into force, 16 S.A. No.1 of 2003 shall, with effect from that day be deemed to hold it as tenantsin-common, as if a partition of such property _per capita_ had taken place among all the members of the family living on the day aforesaid, whether such members were entitled to claim such partition or not under the law applicable to them, and as if each one of the members is holding his or her share separately as full owner thereof." ## 16. In the decision reported in **Saraswathy** ## **Warassiar v. Parukutty Warassiar** (1988(1) KLT 638), it was held thus : “It is well known that in tarwads governed by Marumakkathayam Law no member or tavazhi could in the earlier days claim partition as a matter of right. This was so in the erstwhile Malabar area as also in the erstwhile Travancore State. Division according to prestine Marumakkathayam law was by stirpes and not per capita. The preamble to the Abolition Act states that it is expedient to abolish joint family system among the Hindus in the State of Kerala. Sub-section (1) relates to undivided Hindu families and sub-section (2) relates to other Hindu families. It states that all the members of the family holding any joint family property on the day the Act comes into force shall with effect from that date hold it as tenants in common as if a partition of such property per capita had taken place among all the members of the family living on the day aforesaid, whether such members are entitled to claim such partition or not under the law applicable to them and as if each one of the members is holding his or her share separately as full 17 S.A. No.1 of 2003 owner. The Act came into force on 1-12-1976. With the coming into force of the Act it would be open to the plaintiffs to sue for partition claiming share on per capita basis. That is because the Act confers right of compulsory partition on every member of the family.” That decision is not applicable to the facts of this case, since in that decision, the case involved related to Marumakkathayam Law, whereas, in the present case, we have to consider the impact of that Act on the families governed by the Hindu Mitakshara Law. ## 17. In the decision reported in **Dharmambal v.** **Lakshmi Ammal** (2002(2) KLT 843), after quoting Section 4 of the Act, it was held : “Sub-s. (2) of S. 4 excludes undivided Hindu family referred to in sub-s. (1). Therefore, even though it is stated that all the members of a joint Hindu family holding joint family property on the day of the coming into force of the Act shall hold it as tenants-in-common as if the partition has taken place among the members of the family living on that date aforesaid, it is not stated that their shares will be on per capita basis. Sub-S. (2) is not applicable to undivided Hindu family. This question had arisen indirectly in a Full Bench decision of this Court in _Indira Devi v. Dy. Commissioner, AIT & ST_ (1998 (1) KLT 634 (FB)). It is 18 S.A. No.1 of 2003 stated in that judgment that a reference to the statement of objects and reasons attached to the bill of Kerala Joint Hindu Family System (Abolition) Act would also show that the Legislature never intended to include under sub-s. (2) of S. 4 an undivided Hindu family governed by Mitakshara law. Thereafter the property has to be partitioned ignoring sub-s. (2) of S. 4. If that be so, as per the Hindu law it is per stirpes division that is possible.” In that case, parties were governed by Hindu Mitakshara Law. Sankaranarayana Iyer was the common ancestor. Gopala Iyer and the first defendant were his children. Plaintiffs are the children of Gopala Iyer. Defendants 2 to 7 are the wife and children of the first defendant. Gopala Iyer died on 24.11.1978. The suit was filed in 1984 for partition of the rights of Gopala Iyer in the coparcenary property by the legal heirs of Gopala Iyer. In that decision, it was held : “First defendant and Gopala Iyer represented two branches and by virtue of the provisions of the Hindu Succession Act and Gopala Iyer having died in 1978, the plaintiffs are entitled to 1/2 right in the plaint schedule property which was available for Gopala Iyer in 1978. In that view of the matter, the conclusion of the trial court that the plaintiffs are entitled to 1/2 right and the first defendant and his son are entitled to the other 1/2 is to be restored.” 19 S.A. No.1 of 2003 The facts of the above case is squarely applicable to the facts of the present case. Therefore, I am of the view that the courts below are fully justified in finding that the plaintiffs together are entitled to get ½ share and the first defendant is entitled to get the remaining ½ share. In that view of the matter, I find that the courts below came to the right conclusion regarding the rights of the appellants and their case will not come within the purview of Section 4(2) of the Act and that Section 4(1) of the Act does not create per capita division. The questions of law are answered accordingly. Accordingly, this Second Appeal is dismissed as it is without any merits. There is no order as to costs. Sd/- ## **M.L.JOSEPH FRANCIS, JUDGE.** tgs (true copy)