High Court of KeralaDivision BenchPartly allowed; the preliminary decree is modif...

Sreepathi Baruvathaya v. Shankaranarayana Baruvathaya and Others

Case / Petition Number:AS.No. 313 of 1991 (D) & CROSS OBJECTION

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • Thottathil B. Radhakrishnan
  • B. Kemal Pasha
Judgment Date
2013-02-12
Court Decision / Holding
The appeal is partly allowed. The impugned preliminary decree will stand modified ordering that plaint B schedule items 6 & 10 are also available for partition in addition to the items found partible by the court below. The cross objections are dismissed. The parties will bear their own costs.
Final Disposition
Partly allowed; the preliminary decree is modified to include partition of B schedule items 6 and 10; cross objections dismissed; costs borne by respective parties.

Parties to the Case

Appellants / Petitioners

  • Sreepathi Baruvathaya
  • Krishnaraja Baruvathaya

Respondents

  • Shankaranarayana Baruvathaya
  • Rangayya
  • Sadananda alias S.B. Rao
  • Seetharathna
  • Sunanda
  • B. Sadashiva Baruvathaya
  • Kesava Baruvathya
  • Gulabi
  • Balakrishna Baruvathaya
  • Kalpavalli
  • Vathsala
  • Raviprasad Rao
  • Durgaprasad Rao

Legal Representation & Advocates

Counsels for Petitioners

  • • M. C. Sen
  • • Sreelal N. Warrier
  • • AVM Salahudin

Counsels for Respondents

  • • S.V. Balakrishna Iyer
  • • N. Subramanian
  • • M.S. Narayanan

Case Synopsis & Summary

This is a Division Bench of the Kerala High Court hearing an appeal under AS No. 313 of 1991 (D) and Cross Objection arising from a partition suit filed by the plaintiff in the lower court. The parties are governed by Mithakshara law of inheritance as amended by the Hindu Succession Act, 1956. The primary dispute concerns partition of certain items in B and C schedules of the property. The trial court held some items not to be available for partition; the cross-objection by the first defendant concerned profits. The High Court, invoking well‑settled Mithakshara principles, held that a co‑parcener cannot by gift or unilateral relinquishment dispose of his undivided interest, and such acts are void and bind all members of the joint Hindu family. Relying on authorities such as Chella Subbanna v. Chella Balasubbareddi, Rottala Runganatham Chetty v. Pulicat Ramasami Chetti, H. Krishna v. H.R. Ratnam, and Srinivasa Padayachi v. Parvathi Ammal, the Court held that the preliminary decree should be read in light of co‑parceners’ rights in item 6 and item 10, even if a purchase certificate exists under the Kerala Land Reforms Act. It also notes that item 11 pertains to a family temple and is not partitionable; item C schedule showed partial rights but not total fragmentation. The cross objection on profits is dismissed. The result is a partial allowance of the appeal with modification of the decree to permit partition of items 6 and 10, with costs.

Provisions of Law Cited

Mithakshara Law of Inheritance (amended by Hindu Succession Act, 1956)Hindu Succession Act, 1956Kerala Land Reforms Act

Legal Doctrines & Maxims

  • Co-parceners in a Mithakshara joint Hindu family cannot dispose of undivided interest; such relinquishment is void in toto and binds all co-parceners.
  • A purchase certificate issued by a co-parcener under the Kerala Land Reforms Act inures to the benefit of all co-parceners.
  • Property held as a family temple is not subject to partition under the partition suit.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants argued that under Mithakshara, a co-parcener cannot alienate his undivided share by gift, and such relinquishment must benefit all joint family members. Therefore plaint B schedule item 6, based on a release by a predeceased brother, and item 10, where a purchase certificate was issued to a co-parcener, should be available for partition in favor of all coparceners. They contend that a mere purchase certificate under the Kerala Land Reforms Act does not vest exclusive title in the first defendant to the exclusion of other co-parceners, and Kundathodi Saidali v. Kappil Amina Umma supports that the benefit accrues to the entire family. The argument further asserts that item 11 relates to a temple property, plain on the record as not partitionable in any event, and items in schedule C do not negate the co‑parcener’s rights, though the first defendant had some exclusive transactions.

Contentions of Respondents

The respondents argued that item 11 is a family temple property not subject to partition; item 10’s purchase certificate and item 6’s alleged relinquishment may be interpreted as exclusive rights in the first defendant; they contended that the trial court’s findings on these items should be upheld, and that the Kerala Land Reforms Act and its purchase certificates do not automatically distribute undivided interests; profits and other ancillary aspects of the cross-objection should be dismissed as lacks merit.

Cited Precedents (5)

Case NameCitationTreatmentExplanation
Chella Subbanna v. Chella BalasubbareddiAIR 1945 Madras 142PositiveCited as well-settled law that a co-parcener cannot dispose of undivided share; such relinquishment is void and binds all.
Rottala Runganatham Chetty v. Pulicat Ramasami ChettiXXVII ILR Madras 162PositivePart of the line of authority confirming the non-transferability of undivided coparcenary interests.
H. Krishna & Others v. H.R.Ratnam1988 KLJ 99PositiveCited within the same rationale for coparcenary rights under Mithakshara.
Srinivasa Padayachi v. Parvathi Ammal1969(2) MLJ 597PositiveSupports the proposition that no co-parcener can dispose of undivided interest by gift; such acts are void.
Kundathodi Saidali v. Kappil Amina Umma1984 KLJ 764PositivePurchase certificate by co-parcener under Kerala Land Reforms Act will inure to the benefit of all co-parceners.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** **TUESDAY, THE 12TH DAY OF FEBRUARY 2013/23RD MAGHA 1934** **AS.No. 313 of 1991 (D) & CROSS OBJECTION** **----------------------AGAINST THE JUDGMENT AND DECREE DATED 29.11.90 IN OS.37/1988 of SUB COURT, KASARAGOD DISTRICT** **----------------** ## **APPELLANT : PLAINTIFF IN LOWER COURT** **---------------------------------------------------------------** **SREEPATHI BARUVATHAYA, S/O. RANGAYYA BARUVATHAYA, CULTIVATOR AND TEACHER, SREEKRISHNA NIVAS, BADAJE, KASARAGOD TALUK (DIED)** ## ***IMPLEADED AS THE SECOND ADDITIONAL APPELLANT** ***2. KRISHNARAJA BARUVATHAYA, S/O. LATE SREEPATHI BARUVATHAYA, HINDU, CULTIVATOR AND STUDENT, AGED 20 YEARS, RESIDING AT SREEKRISHNA NIVAS IN BADAJE OF BADAJE VILLAGE, KASARAGOD TALUK AND DISTRICT.** ***IMPLEADED AS LR OF THE DECEASED APPELLANT AS PER ORDER DT. 12/8/02 IN CMP NO. 4105/2002.** **BY SENIOR ADVOCATE SRI.M.C.SEN BY ADV. SRI.SREELAL N. WARRIER SRI.AVM.SALAHUDIN** ## **RESPONDENTS: DEFENDANTS IN LOWER COURT :** **---------------------------------------------------------------------------** **1. SHANKARANARAYANA BARUVATHAYA, S/O. RANGAYYA BARUVATHAYA, BADAJE, KASARAGOD TALUK (*DIED, LRS IMPLEADED)** ## **2. RANGAYYA, S/O. SHANKARANARAYANA BARUVATHAYA OF DO. (**RECORDED)** **...2/-** ## **AS.No. 313 of 1991 (D) & CROSS OBJECTION -2-** **3. SADANANDA ALIAS S.B. RAO, S/O. BHAGIRATHI, RESIDING AT E 1-C7-C10-SECTOR 10, PHASE II, NERULE, NEW BOMBAY-400706.** **4. SEETHARATHNA, S/O. RANGAYYA BARUVATHAYA, BADAJE, KASARAGOD TALUK.** **5. SUNANDA, W/O. JANARDHANA RAO, RESIDING NEAR KADIRI TEMPLE, POST KADIRI, MANGALORE TOWN (***DIED, LRS IMPLEADED)** **6. B. SADASHIVA BARUVATHAYA, S/O. RANGAYYA BARUVATHAYA, RESIDING AT 007 PRAGATHI SOCIETY, PLOT NO. 65A, J.B. NAGAR, ANDHERI EAST, BOMBAY - 59, MAHARASHTRA STATE.** **7. KESAVA BARUVATHYA, MINOR, AGED 12 YEARS, REPRESENTED BY THE GUARDIAN 1ST DEFENDANT, SHANKARANARAYANA BARUVATHAYA, BADAJE, KASARAGOD TALUK. (**RECORDED)** ## ****THE 2ND AND 7TH RESPONDENTS ARE RECORDED AS SOME OF THE LEGAL REPRESENTATIVES OF DECEASED 1ST RESPONDENT AS PER ORDER DT. 22/8/05 IN CMP 1825/96.** ## ***ADDL. R8 TO R11 ARE IMPLEADED - LRS OF R1** **--------------------------------------------------------------------** - ***8. GULABI, WIDOW OF SANKARANARAYANA BARUVATHAYA, BADAJE, KASARGOD TALUK.** - ***9. BALAKRISHNA BARUVATHAYA (MINOR, 16 YEARS) S/O. SANKARANARAYA BARUVATHAYA, -DOREPRESENTED BY 8TH RESPONDENT.** - ***10. KALPAVALLI, D/O. -DO- AND W/O. SATHISH SHARMA, C/O. UMAMAHESWARA DEVASTHANAM, KUMBDAJE VILLAGE, P.O. MULLERI, KASARAGOD.** - ***11. VATHSALA, D/O. SANKARANARAYANA BARUVATHAYA BADAJE KASARAGOD TALUK.** ***THE RESPONDENTS 8 TO 11 WHO ARE THE OTHER LEGAL REPRESENTATIVES OF DECEASED 1ST RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENTS 8 TO 11 AS PER ORDER DT. 22/8/05 IN CMP 1825/96.** **...3/-** ## **AS.No. 313 of 1991 (D) & CROSS OBJECTION -3-** *****ADDL. R12, R13 ARE IMPLEADED - LRS OF DECEASED R5** - ***12. RAVIPRASAD RAO, S/O. SUNANDA, RESIDING AT SALALAYA COMPOUND PADUNITHU, MUNDANA, POST BIJAI, MANGALORE - 4.** - ***13. DURGAPRASAD RAO, -DO- -DO-** - *****ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED R5 AS PER ORDER DATED 16.10.07 IN IA 3776/07.** **R5 BY SENIOR ADVOCATE SRI.S.V.BALAKRISHNA IYER BY ADV. SRI.N.SUBRAMANIAN BY ADV. SRI.M.S.NARAYANAN** **THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 12-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **Mn** ## THOTTATHIL B.RADHAKRISHNAN & B.KEMAL PASHA, JJ. .................................................................... A.S.No.313 of 1991 & Cross Objection in A.S.No.313 of 1991 .................................................................... Dated this the 12[th] day of February, 2013. ## J U D G M E N T ## Thottathil B.Radhakrishnan, J. These appeal and cross objection arise from a suit for partition. It is not in dispute that the parties are governed by the Mithakshara Law of Inheritance as amended by the Hindu Succession Act, 1956. There is also no dispute raised before us regarding the number of shares due to the parties as determined as per the impugned preliminary decree. The plaintiff's appeal is confined to the refusal of the court below to order partition of items 6, 10 & 11 in B schedule and C schedule immovable properties. The cross objection by the 1[st] defendant is only on the question of profits. 2. We have heard the learned counsel for the appellant AS 313/91 **==> picture [15 x 9] intentionally omitted <==** and the learned counsel for the contesting 1[st] respondent (1[st] defendant). 3. As regards item 6 in plaint B schedule, the 1[st] defendant held out Ext.B4 release by Sitarama; a pre-deceased brother, that is to say, one, who died before their late father Rangayya Baruvathaya. By now, it is well settled by various decisions ranging from AIR 1945 Madras 142 (F.B.) (Chella Subbanna v. Chella Balasubbareddi), XXVII ILR Madras 162 (Rottala Runganatham Chetty v. Pulicat Ramasami Chetti) down to 1988(1) KLJ 99 rendered by this Court in H.Krishna & Others v. H.R.Ratnam & another, that a member of a joint Hindu family governed by the Mithakshara Law cannot give his interest in the family estate to one of several co-parceners, if they remain joint in estate. Any such relinquishment of interest shall operate for the benefit of all the members of the joint Hindu family concerned. This is all the more so because, it is not competent to an individual member of a Hindu family AS 313/91 -3- to alienate, by way of gift, his undivided share or any portion thereof; and such alienation, if made, is void in toto. As held in Srinivasa Padayachi v. Parvathi Ammal (1969(2) MLJ 597), it is well settled law that under the Mithakshara School of Hindu Law, no co-parcener can dispose his undivided interest in coparcenery property by way of gift. Such a transaction will be void in toto and will not bind even the donor or his share of the property. Applying the law as so noticed, the finding of the court below that plaint B schedule item 6 is not available for partition, is liable to be set aside. 4. Plaint B schedule item 10 was claimed by the 1[st] defendant to be exclusively belonging to him on the basis of a purchase certificate issued by the Land Tribunal. Looking at the records, we see that Ext.B6 contains the findings which are stated to be preliminary. Notwithstanding the fact that the mere preliminary findings by themselves could not be conclusive in view of the clear terms of the Kerala Land AS 313/91 -4- Reforms Act, we are of the view that even if there is a purchase certificate, that does not tilt the case in favour of the 1[st] defendant, having regard to the fact that the purchase certificate by one of the co-parceners of a Hindu joint family will inure to the benefit of all the members of that family, as held by this Court in Kundathodi Saidali v. Kappil Amina Umma, (1984 KLJ 764). Applying that decision, with which we are in complete agreement, the finding of the court below as regards plaint B schedule item 10 is also liable to be set aside. 5. Plaint B schedule item 11 has been rightly excluded by the court below holding that the said property, even going by the plaintiff’s version, is one that holds the family temple. 6. Insofar as plaint C schedule is concerned, the clear finding of the court below is that the 1[st] defendant had intentions and purposes in relation to that item as if it is exclusively belonging to him, and there was no blending, and AS 313/91 -5- merely because the 1[st] defendant had not kept separate accounts, he never intended to abandon his separate right in plaint C schedule properties. Added to this, it is a matter of record that the 1[st] defendant had sold 70 cents out of that item in favour of one Baby as per a registered sale deed and thereafter, sold another 4 cents to one Aithu Shettigars. Ext.B5 is the certified copy of the sale deed in favour of Baby Hegde. That deed is accepted and acted upon by the court below. We, therefore, deem it appropriate to hold that item C schedule properties are not available for partition. The findings in this regard by the court below do not call for any interference. 7. We also do not find any ground to interfere with the decision of the court below, as regards profits. 8. Having regard to the nature of the disputes, we do not find any merit in the cross objection either. AS 313/91 -6- In the result, 1. The cross objections are dismissed. 2. The appeal is partly allowed. The impugned preliminary decree will stand modified ordering that plaint B schedule items 6 & 10 are also available for partition in addition to the items found partible by the court below. 3. The parties are directed to suffer their respective costs. (THOTTATHIL B.RADHAKRISHNAN , JUDGE) ## (B.KEMAL PASHA, JUDGE) jg