JUDGMENT
Kulkarni, J.
1. The L. Rs. of the deceased defendant No. 3 have preferred this second appeal against the judgment and decree dated 17-2-1976 passed by the Additional District Judge, South Kanara, Mangalore, in R. A. No. 6 of 1974 reversing the judgment and decree dated 17-4-1974 passed by the Civil Judge, Mangalore, in O. S. No. 88 of 1971 dismissing the suit.
2. The parties have been referred to for the sake of convenience, with reference to their position in the trial Court.
3. The relevant genealogy is as below :–
Hundi Manjunath Kamath
___________________________________|______________________________________
| | | | | |
H. Venkatesh H. Vaman H. Janardhan H. Purusho- H. Rama H. Narasimha
Kamath Kamath Kamath thama Kamath Kamath
(issue less) (issue less) | Kamath |
| | |
| | |
Annappa Kamath | Ganapathi Kamath
(died in 1961) | (D-1)
| | |
| | _________|_____________
Manjunath Kamath | | |
(died in 1958) | Venkatesh Narasimha
| Kamath Kamath
| (D-2) (plaintiff)
__________________________|___________________________
| | |
Vasudeva Kamath Upendra Kamath Sadashiva Kamath
4. Hundi Manjunath Kamath was the propositus. The said Hundi Manjunath Kamath died leaving behind him six sons Defendant-1 is the father of the plaintiff. Defendant-2 is the second son of defendant-1. The 3rd defendant is a partnership concern. Defendants-4, 5 and 6 had been subsequently impleaded as the remaining L. Rs. of the deceased defendant-1. No specific relief is claimed against defendants-4 to 6. The suit property had been acquired by the propositus Hundi Manjunath Kamath. Rama Kamath, one of the six sons of Hundi Manjunath Kamath, went in adoption. Venkatesh and Vaman, two of the sons of Hundi Manjunath Kamath, died issueless. Another son Purushotham Kamath got divided from his father in 1900 and took his share as per the registered partition deed dated 9-12-1900.
Janardhan Kamath, third son of Hundi Manjunath Kamath died leaving behind him his son Annappa Kamath who died in 1961 or 1962. His only son Manjunath Kamath died in 1958 and thus had pre-deceased his father Annappa Kamath. Therefore the only two branches, one represented by Janardhan Kamath and the other represented by Narasimha Kamath, continued the line. Thus the branch of Janardhan Kamath and the branch of Narasimha Kamath had equal share in the plaint-A schedule property. Ramani alias Yeshoda was the wife of Manjunath, son of Annappa Kamath. The said Manjunath Kamath died in 1958 leaving behind his wife Ram and alias Yeshoda and his father Annappa Kamath. On the death of her husband Manjunath Kamath, Ramani alias Yeshoda succeeded to 1/4th share in the property. On the death of Annappa Kamath, she succeeded to his 1/4th share also in the property. Thus, on the death of Annappa Kamath, she became the owner of half share in the property by succession as provided by Section 6 of the Hindu Succession Act.
Defendant-1 was doing the business under the name and style of ‘Hundi Venkatesh Kamath’. Neither Ramani nor her husband nor her father-in-law was interested in this trade. Defendant-1 was also not the karta of the joint family. Ramani alias Yeshoda had, on account of the family quarrel, started living separately from the other members of the family. Even notices were exchanged between her on the one hand and the other members of the family on the other. By a registered settlement deed dated 26-12-1968, Ramani settled her half share in the A schedule property on the plaintiff Narasimha Kamath and put him in possession of that property. Thus, the plaintiff by virtue of the said settlement deed, became the owner of the undivided half interest settled by Ramani in his favour.
Defendant-1 appears to have borrowed Rs. 23,000/- from defendant-3 under an equitable mortgage. He appears to have mortgaged the entire property notwithstanding the fact that he had only half share in the suit A-schedule property. Defendant-3 instituted O. S. No. 92/1969 on the file of the Civil Judge, Mangalore, on the foot of the said equitable mortgage and obtained a decree that defendant-1 should pay the decretal amount to the mortgagee defendant-3 and if he failed to pay the money, then the mortgaged property should be brought to sale.
The present plaintiff had been impleaded as defendant-2 in O. S. No. 92/69 and he contended in that suit that his half share which he got from Ramani was not liable for the debt incurred by defendant-1 from defendant-3. In view of this contention raised by the present plaintiff in the said suit the suit against him was not pressed, O.S. No. 92/69 resulted in a compromise and thus the decree passed in O. S. No. 92/69, is not binding on the plaintiff. The present plaintiff requested defendants-1 and 2 to divide the property and to give possession of his half share. As they were postponing, he had to file the present suit for partition and possession of half share which he got from Ramani.
5. Defendant-1 consented to a decree. Defendant-2 has remained exparte.
6. Defendant-3 resisted the suit alleging that the said settlement deed was vitiated by fraud and collusion. According to him, the business carried on by defendant-1 was a family business. According to him, defendant-1 incurred the loan in question for the benefit of the family and for the benefit of the family business and for clearing off the debts incurred by the family and also for meeting the expenses of the marriage of the plaintiff’s sister. Hence the said loan is binding on all the members of the family including Ramani. The plaintiff is estopped from contending that the decree was passed only against half share in the plaint – A schedule property. The suit is barred by res judicata in view of the decree passed in O.S. No. 92/69, The plaintiff, on account of the pious obligation, is bound to discharge the debt due to defendant 3 from defendant-1. The properties are liable to be sold free from the settlement deed. The plaintiff has been in possession of the suit property as a member of the joint family and by virtue of the settlement deed. Thus, in short, he requested for the dismissal of the suit.
7. The trial Court framed as many as 7 issues in the suit. It recorded the evidence of Hundi Vasudeva Kamath P.W. 1 and Raghavendra Kini P.W. 2 and of Visawanathayya D.W. 1 and Basti Venkatesh Shenoy D.W. 2, It marked also Exhibits P 1 to P 4 and D 1 to D 17. The trial Court dismissed the suit. The plaintiff approached the District Judge, Mangalore, with R.A. No. 6 of 1974. The Additional District Judge, Mangalore set aside the decree passed by the Civil Judge and decreed the suit. Hence the second appeal by the L. Rs. of defendant-3.
8. That the property in question had been acquired by the propositus Hundi Majunath Kamath, is undisputed. It is also undisputed that the branch of Annappa Kamath and of defendant-1 had each half share in the suit property. It is also undisputed that Ramani alias Yeshoda is the widow of Manjunath Kamath, son of Annappa Kamath who is the son of Janardhan Kamath. Thus it becomes clear that Annappa Kamath and his lineal descendants had half share in the property. It is also undisputed that defendant-1 Ganapathi Kamath and his two sons Narasimha Kamath (plaintiff) and defendant-2 Venkatesh Kamath together had the remaining half share. It is also undisputed that Manjunath Kamath, son of Annappa Kamath, died in 1958 leaving behind him his wife Ramani and his father Annappa Kamath. Thus under Section 6 of the Hindu Succession Act, 1/4 th share of Manjunath Kamath was inherited by his widow Ramani by succession. It is also undisputed that Annappa Kamath died in 1961 or 1962 leaving behind his daughter-in-law Ramani alias Yeshoda. Therefore as per Section 6 of the Hindu Succession Act, his l/4th share also was got by Ramani alias Yeshoda by succession. Thus Ramani alias Yeshoda became the owner of half share in the suit property by succession as narrated above. The remaining half share in the suit property remained with defendant-1 Ganapathy Kamath and his two sons Narasimha Kamath (plaintiff) and Venkatesh Kamath (defendant-2). It is also undisputed that defendant-1 created an equitable mortgage in favour of defendant-3 on 29-12-1966 as per the equitable mortgage deed. It is undisputed that defendant-3 filed the suit-O.S No. 92 of 1969-against defendant-1 and his son (now the plaintiff in this suit). It is also undisputed that the present plaintiff who was defendant-2 in that suit, had raised a contention that he got 1/2 share from Ramani alias Yeshoda under the settlement deed. He was deleted. It is also undisputed that O. S. No. 92 of 1969 came to be decreed against defendant-1.
9. The learned author Shri Mulla in his Hindu Law, 15th edition, on page 933 has stated as :-
“The estate which devolves on the classified heirs of the deceased coparcener under the proviso is one which is carved out of the joint family property and becomes the independent and separate property of such heirs. It necessarily follows that neither the surviving coparceners nor the Karta of the joint family can deal with it without reference to them on the footing that he is continuing the joint family business for the benefit of such heirs along with the members of the joint family. As already pointed cut that the heirs would not be subject to the hazard of the fluctuations in the fortunes of the family subsequent to the death of the deceased coparcener unless some special equities have arisen against them or any of them. Thus for instance if a debt was incurred by the Karta of the joint family in conjunction with such classified heirs and with their consent, express or necessarily to be implied, then such heirs may become involved and heir involvement or participation may render them liable for the debt.”
10. In this case, as already stated above, Ramani alias Yeshoda became the owner of half share in the property by way of succession under Section 6 of the Hindu Succession Act. Thus, that half share became independent and separate property of Ramani alias Yeshoda. This is also the view taken in P.Govinda Reddy and ors. v. Golla Obulamma, ; Karuppa Gounder v. Palaniammal, ; Venkiteshwar Pai v. Luis, ; Govindram v. Chetumal, ; Narayanprasad v. Mutuni Kohain, ; and M.V. Shivaji Rao v. Rukminiyamma, 1972(2) Mys. L.J. 374.
11. It may be that notwithstanding Ramani succeeding to half share in the property, the family continued to be joint. But in the case of a joint family, the Karta of the joint family has no power to Mod the separate and personal interest of a member of the joint family. He can bird the interest of the coparceners or the members of the joint family in the joint family properties. As already indicated above, half share got by Ramani in the suit property was her separate, individual and personal property. Thus, defendant-1 had no power at all to enter into any transaction affecting the separate half share of Ramani in the suit property. Such a heir only becomes a tenant in common along with other sharers. Therefore her half share in the property which she got by succession, cannot be dealt with by other members of the joint family as if it is a joint family property.
12. It is no doubt true that the plaintiff was a member of the joint family along with his father defendant-1 and his another brother defendant-2. He might get a share in the half share belonging to the branch of his father in the suit property. That interest which the plaintiff might have had in the half share of his father, is liable to be dealt with by the father as manager of the family. But the plaintiff in this suit claims relief in respect of half share which he got under the settlement deed executed by Ramani in his favour. Thus, the plaintiff who is the transferee in respect of that half share which he got from Ramani, would be holding that half share as his own, independent and personal acquisition.
13. That half share which Ramani got by way of succession became vested in her. First l/4th share out of her half share became vested in her when her husband died and the remaining l/4th share she got from her father-in-law in 1961 or 1962 when her father-in-law died. Thus the half share became her separate property by the end of 1961 or 1962. Defendant-1 has created the equitable mortgage on 29-12-1966 i.e. long after she had become the owner of the half share in the property by way of succession. Therefore defendant-1 had no power at all to enter into any transaction affecting her separate half share in the suit property.
14. The Learned Counsel Shri Hande referred me to M.V. Shivaji Rao Kore and ors. v. Rukminiyamma and ors, 1972(2) Mys. L.J. 374. The said decision lays down that notwithstanding the fact that a female heir becomes the owner of a share of the property by succession, the joint family business does not come to an end. But there is nothing in the said decision to indicate that the manager of the joint family had power to enter into a transaction affecting the separate share got by a female heir under the Hindu Succession Act.
15. Shri Hande relied on the observation contained on page 933 of Mulla’s Hindu Law to the following effect :-
“Thus for instance if a debt was incurred by the Karta of the joint family in conjunction with such classified heirs and with their consent, express or necessarily to be implied, then such heirs may become involved and heir involvement or participation may reader them liable for the debt.”
For this, he relied on Bharat Trading (International) Ltd, and anr. v. P. Nachiar Animal and Ors., AIR 1976 Madras 393; P. Govinda Reddy and ors. v. Golla Obulamma, ; and Fathimunnisa Begum v. T. Rajagopalacharyulu, AIR 1977 A. P. 24. What the said decisions rules is that if there is proof that the debt was incurred by the Karta of the joint family in conjunction with such classified heirs and with their consent, either tacitly or by necessary implication, then, by reason of such a bargain, the female and the other heirs to such sharers may become involved and that involvement or participation may make them liable for the debt. The said decisions further lay down that in order to make them liable in the eye of law, it is necessary that there should be acceptable proof and enough material so as to make them liable for such debts incurred by the Karta in the course of the management of the joint family, and that the liability or the obligation to shoulder such a responsibility would therefore depend upon the proof of the connection or the nexus between the debt and the activity of the classified heir, and that if the female heir or the other heirs as mentioned to the proviso to Section 6 by reason of their conduct give a reasonable man the impression that they allowed the Karta to borrow and they prompted the creditor to give on their assurance and on their being joint promisors or obligors, then, they cannot escape liability.
16. These decisions relied on by Shri Hande do not appear to have considered the implication of succession by the female hair under Section 6 of the Hindu Succession Act. As already indicated above, the share which a female gets under Section 6 of the Hindu Succession Act is her separate property. Once it is the separate property of a female heir, then the Karta of the family who can represent the members of the joint family only in regard to joint family properties, cannot eater into a transaction so as to affect the separate property or share of the female heir which she got under Section 6 of the Hindu Succession Act. Even assuming for a moment that the Karta of a family has got power to enter into a transaction affecting the share of the female got under Section 6, what will have to be found out is and there must be material to show that the karta of the family in conjunction with such classified heirs and with their consent either tacitly or by necessary implication, incurred the debt in question. Further it must be found out that the female heir by her conduct gave an impression to the lender that she allowed the Karta of the family to borrow and thus prompted the creditor on her assurance to advance the loan. She should be as good as a joint promisor or an obligor.
17. In this case, Shri Hande referred me to para 57 of the evidence of P.W. 1 who appears to be a member of the family of defendant-1. The evidence of P.W.I contained in para 57 reads as :-
“When I drafted the settlement deed I was not knowing about the equitable mortgage in favour of defendant-3.”
He contended that P.W.I was kept in darkness about the equitable mortgage in favour of defendant-3 while the settlement deed was executed. According to him, it was an intentional omission to inform P.W. 1 who drafted the settlement deed. Whether it was an intentional omission, does not make any difference in the case. It is no circumstance at all to show that Ramani alias Yeshoda or the plaintiff by their conduct prompted defendant-3 to advance the loan to defendant-1.
18. He then referred me to para 54 of the evidence of P.W. 1 which shows that at the time of the settlement deed, the family had no other property except the suit property and that the family house was sold on the same day on which the settlement deed was executed. According to the learned Counsel Shri Hande, Ramani got the benefit out of the consideration got by the sale of another family house on the very day when the settlement was executed. As a heir under Section 6 of the Hindu Succession Act, she was entitled to a share in the sale proceeds of the family house. Therefore it is no circumstance to show that by her conduct she enabled defendant-3 to advance the loan to defendant-1.
19. The learned Counsel Shri Hande then referred me to para 59 of the evidence of P.W. 1 which indicates that there was an equitable mortgage of the family house and the suit property in favour of Karnataka Bank and they were mortgages created by defendant-1 alone. I am unable to understand as to how these circumstances would spell out any consent tacitly or otherwise on the part of Ramani alias Yeshoda or the plaintiff.
20. The learned Counsel Shri Hande then urged that Ramani alias Yeshoda was living with defendant-1 himself who had created the equitable mortgage. As a widow of a member of the joint family, she might be living with defendant-1. Simply because she was living with defendant-1, it does not mean that defendant-3 advanced the loan to defendant-1 to the knowledge of Ramani alias Yeshoda. Hindu families are mainly male dominated and the ladies do not normally take much interest in the affairs of the family. Ramani alias Yeshoda by that lime had succeeded to half share in the suit properly. But that does not mean that by her conduct she enabled defendant-3 to advance the loan to defendant-1. These circumstances are not even remotely sufficient to indicate that Ramani alias Yeshoda or the plaintiff gave their consent express or implied to the borrowing of the loan by defendant-1 from defendant-3. Therefore even viewed from this angle, the equitable mortgage created by defendant-1 in favour of defendant-3 and the decree obtained by defendant-3 against defendant-1, will not affect the half share of Ramani alias Yeshoda which has been subsequently got by the plaintiff under the settlement deed. Thus the half share which the plaintiff has got under the settlement deed from Ramani alias Yeshoda, is not bound by the mortgage decree obtained by defendant-3 against defendant-1 in O.S. No. 92 of 1969.
21. So far as the plea of res judicata is concerned, less said the better about it. The plaintiff who was defendant-2 in O.S. No. 92 of 1969, was given up by defendant-3 who had filed that suit. Thus, no decree has been passed against the present plaintiff who was defendant-2 in that suit. He was given up mainly on the ground that he raised a contention that he got half share of Ramani alias Yeshoda in the suit property by way of settlement deed. Knowing full well the fact that defendant-3 in this suit gave up the present plaintiff, in O. S. No. 92 of 1969, it cannot be said that the present suit is barred by res judicata by virtue of the decision in O. S. No. 92 of 1969.
22. The learned Counsel Sri Hande then relied on the theory of pious obligation and contended that by virtue of the theory of pious obligation, the plaintiff was bound to pay off the mortgage decree debt. In Mayne’s Hindu Law and Usage, 12th edition, on page 602, it is stated as —
“344. Liability of male issue :– Under the Mitakshara law as administered in all the States, the liability of the son, grand-son and great-grand-son to pay the debts of their ancestor is not a personal liability. They are not liable for such debts unless they receive assets. The position is the same as regards liability far income-tax. It is settled law that the obligations of the sons, grandsons, and great-grand sons are co-extensive. There is no difference between sons and grandsons as to the payment of principal and interest.
“Not personal but confined assets:– For the purpose of this liability of male issue for debts, the assets include not only the separate or self-acquired property of the ancestor but also the ancestral property. The liability of the sons grandsons, and great grandsons to pay their ancestor’s debts out of the ancestral property in their hands depends upon the nature of the debt. If it is immoral or illegal they are not liable to pay it to the extent of that property. But their liability to pay debts of the ancestor out of his separate property in their hands is the same liability as that of the ancestor himself and the son, grandson or great-grandson, just like any other heir who takes the assets, is not entitled to claim an exemption on the ground that the debts are immoral or illegal. So too, under the Dayabhaga law, the son’s liability is the same as that of his father irrespective of the character of the debt, for he has no right by birth in his father’s property which he fakes strictly as his heir.”
The question of theory of pious obligation would come into play only if the joint family properties are possessed by the family and if it comes into the bands of the son or son’s son or son’s son’s son. So far as this half share is concerned, it was the separate property of Ramani. The plaintiff got it from Ramani. Therefore merely because the half share in the property was got by the plaintiff from Ramani, it does cot mean that this half share got by the plaintiff under the settlement deed would be liable to pay the mortgage decree debt involved in O. S. No. 92 of 1969. Under the guise of pious obligation, the separate property of a son or son’s son or son’s son’s son, cannot be made liable for the payment of the debt incurred by the karta of the family.
23. The learned Counsel Shri Hands urged that the plaintiff was barred by the principle of estoppel from contending that the half share claimed by him in the suit should not be made subject to the mortagage debt. The question of estoppel would arise when an ostensible owner transfers the property for consideration and when the real owner on the basis of his secret title wants to avoid that transfer. In this case these circumstances are not available at all. Therefore the argument of the learned Counsel Shri Hande in this connection is rejected.
24. The learned Counsel Shri Hande then relied on Section 23 of the Hindu Succession Act which says that a female member of a family connot enforce a partition in respect of a dwelling house belonging to the joint family. It is crystal clear from the reading of Section 23 of the Hindu Succession Act and also in view of the principles laid down in Arun Kumar Sanyal v. Jnanendra Nath Sanyal and Anr., that a female who has got the property by succession under Section 6, cannot enforce the partition of a joint family dwelling house. It is also true that a transferee from such a female heir who steps into the shoes of the female heir and who gets only the rights and the liabilities of the female heir, cannot enforce a partition of the family dwelling house. But, in this case, defendant-1 who is the karta of the family has consented to the decree for partition and separate possession of half share in the suit property. Defendant-2 has remained exparte. The plaintiff who is the other member of the family has himself filed the suit. Therefore, it is a case where the members of the joint family themselves have consented by their own conduct to the partition of the dwelling house. Even going a step forward, the present defendant-3 who has obtained the decree can, at the most, bring to sale the right, title and interest of defendant-1 and his lineal descendants in the property. Even if defendant-3 himself purchased the property in the Court auction sale, his remedy would be only by way of a suit for general partition. When the remedy of defendant-3 is only by way of a suit for general partition, it will have to be taken that he also, in a way, by his own conduct, cannot have any serious objection to the partition of the dwelling house. This is also the view taken by the lower Appellate Court.
25. Thus, in the result, the decree passed by the lower Appellate Court needs no interference. The second appeal is dismissed. The appellants in this second appeal should pay the costs of the plaintiff throughout and should bear their own throughout.