PETITIONER: THIMMAIAH AND ORS. Vs. RESPONDENT: NINGAMMA AND ANR. DATE OF JUDGMENT: 25/08/2000 BENCH: A.P.Misra, Ruma Pal JUDGMENT:
RUMA PAL, J.
The issue to be decided in this appeal is the share of
each of the parties in coparcenary properties. Hiri
Thimmaiah (referred to briefly as Hiri) was the Karta of
the coparcenary. He had two wives Sidamma and Ningamma.
The appellants are the children of Hiris first wife,
Sidamma. The respondent No. 1 is the second wife and the
respondent No. 2 is her daughter. Hiri died in 1971. Soon
after his death, in 1972, the appellant No. 1 filed a suit
for partition by metes and bounds of 12 properties described
in the Schedule to the plaint and for separate possession of
7/12th share in such properties. The case in the plaint was
that items 1 and 2 of the schedule properties were ancestral
and all the remaining properties belonged to the
coparcenery. The further case in the plaint was that Hiri
had illegally sought to gift away item No. 1 and 2 by deed
dated 17.11.67 to the respondent No. 1 and items 3 to 6 by
deed dated 9.6.71 to the respondent No. 2. The appellant
No. 1 claimed a declaration that the gifts were void. The
appellants 2, 3 and 4 were named as defendants 3, 4 and 5 in
the suit. They filed a written statement substantially
supporting the case of the appellant No. 1 and claiming
1/4th share in all the 12 properties. In their written
statement, the respondents (who were the defendants 1 and 2
in the suit) conceded that items 1 and 2 were ancestral
properties but claimed that items 3 to 6 were the self-
acquired properties of Hiri. They claimed that both the
deeds were settlement deeds. The first settlement deed
dated 17.11.67 made provision for the maintenance of
respondent No. 1 out of items 1 and 2 and after her death,
the properties were to revert back to Hiri. By the second
deed dated 9.6.71, items 3 to 6 had been settled on the
second respondent with the consent of appellant No. 1 who
had not only put his left thumb impression on the deed but
had also signed the document as a consenting party. Issues
were framed on the basis of the pleadings. Witnesses were
examined in support of the contesting parties. The Trial
Court negatived the claim put forward by the respondents
that the two deeds were deeds of settlement. It was held
that items 3 to 6 were not the self-acquired properties of
Hiri but belonged to the coparcenary and that the two deeds
were deeds of gift and were void. In coming to this
conclusion, the Trial Court noted the contention of the
appellant No. 1 that fraud had been committed on him and
that he had not fixed his left thumb impression by way of
his consent to the document dated 9.6.71 and said: It has
to be noted that there is material in the evidence of D.W- 2
the uncle of the plaintiff, to show that on the very same
day of the execution of the document in question, the father
of the plaintiff executed another document in favour of his
brother D.W-2 as per Ex.P- 24 and in the course of obtaining
consent of the plaintiff to that document, Ex.P-24, the
signature of the plaintiff is by deceitful means obtained on
Ex.D-2 also.
However, the Trial Judge did not hold that the deeds
were void only because of the lack of the consent of
appellant No. 1. Relying on the decision of this Court in
Ammathayee alias Perumalakkal and Anr. V. Kumaresan alias
Balakrishnan and Others AIR 1967 SC 569 the Trial Judge held
that Hiri was incompetent to gift items 3 to 6 to the
respondent No. 2 irrespective of the consent of the
appellant No. 1. According to the Trial Judge immovable
ancestral properties could only be gifted within reasonable
limits for pious purposes such as the marriage of an
unmarried daughter. The Trial Court found that a
considerable portion of the coparcenary properties had been
gifted by Hiri to the respondent No. 2 and that it could
not be said that the gift had been made in favour of the
second respondent in fulfillment of any pious purpose as she
was well below the marriageable age when the gift was made.
The appellant No. 1s suit was accordingly decreed on 8th
August 1977 as prayed for by the respondent No. 1 and a
preliminary decree for partition was passed. The
respondents preferred an appeal before the District Judge.
The first appellate Court dismissed the appeal and upheld
the findings of the trial Court that the properties were
coparcenery and could not have been affected by the two
impugned deeds executed by Hiri in favour of the
respondents. On the question of consent, the District Judge
said: Plaintiff has taken the stand that his L.T.M. is
taken to Ex.D-1 at Ex.D.1 (e) by practising fraud on him
when he had gone to the Sub-Registrars Office at the time
of execution of another document by his father regarding
sale of a site. Even if it can be held on the basis of the
evidence of D.Ws. 1 and 2 that plaintiff has attested
Ex.D-1 by putting his L.T.M. at Ex.D-1 (e), I find it
difficult to uphold the validity of Ex.D-1 as there is no
recital in the body writing of Ex.D-1 that the properties
were gifted by H. Thimmaiah in favour of the 2nd defendant
with the specific consent of the plaintiff. Therefore, the
mere attestation of Ex.D-1 by the plaintiff by putting his
L.T.M. would not validate the gift of considerable portion
of family properties made under Ex.D-1.
A second appeal was preferred by the respondents
before the High Court. There it was urged by the
respondents for the first time that by virtue of the Mysore
Hindu Law Womens Rights Act, 1993 (hereafter referred to as
the Mysore Act), the respondent No. 1 was entitled to a
widows share and the respondent No. 2 to an unmarried
daughters share in addition to their rights on intestacy as
heirs of Hiri under the Hindu Succession Act, 1956 as well
as under the two deeds dated 17.11.67 and 9.6.71. The High
Court held that the respondent No.2 was entitled to 1/9th
share in the coparcenary property under Section 8 of the
Mysore Act but negatived the claim of the respondent No. 1
not only under the Mysore Act but also under the deed dated
17.11.67. As far as the deed dated 9.6.71 was concerned, it
was held by the High Court that items 3 to 6 had been gifted
to the respondent No. 2 with the consent of the appellant
No. 1 and was, therefore, valid. The High Court held that
the conclusion arrived at by the Trial Court and the first
appellate Court that the appellant No. 1 had not consented
to the gift, was not based on any acceptable evidence.
According to the High Court, items 3 to 6 were, therefore,
not available for partition and the parties entitlement in
the remaining properties were: Appellant No. 1 4/9+4/54 =
28/54 (son)
Appellant No. 2 = 4/54 (married daughter)
Appellant No. 3 = 4/54 (married daughter)
Appellant No. 4 = 4/54 (married daughter)
Respondent No. 1 = 4/54 (widow)
Respondent No. 2 (unmarried daughter) 1/9+4/54 =
10/54
The judgment delivered on 1st August 1991 by the
learned Single Judge of the High Court has been impugned
before this Court on the ground that the High Court on
second appeal should not have interfered with concurrent
findings of fact on the appellants lack of consent and
should not have applied the provisions of the Mysore Act
which, according to the appellants, had been excluded by the
provisions of Section 4 of the Hindu Succession Act, 1956.
The respondents have relied upon the decision of this Court
in Ladli Parshad Jaiswal V. The Karnal Distillery Co., Ltd.
Karnal and Others AIR 1963 SC 1279 to contend that the High
Court was competent to reverse the finding of the lower
Courts that there was no consent of the appellant No. 1,
because the finding was based on no evidence. It is also
contended that the provisions of the Mysore Act are
ancillary to the provisions of the Hindu Succession Act,
1956 and particularly Sections 6 and 8 of that Act. In
Jaiswals case (supra), this Court has, no doubt, held that:
A decision of the first appellate Court reached after
placing the onus wrongfully or based on no evidence, or
where there has been substantial error or defect in the
procedure, producing error or defect in the decision of the
case on the merits, is not conclusive and a second appeal
lies to the High Court against that decision.
But at the same time, this Court has noted that the
High Court has no jurisdiction to entertain a second appeal
on the ground of an erroneous finding of fact however gross
or inexcusable the error may seem to be. In other words,
if there is some evidence and the appreciation of the
evidence is erroneous, a second appeal will not lie.
Further the decision in Jaiswals case was rendered prior to
the amendment of Section 100 by which the provisions of
second appeal are more stringent and have been strictly
limited to those cases where a substantial question of law
arises and in no others. We have already noted the
findings of the Trial Court as well as the first appellate
Court on the question of consent. These observations
clearly show that there was some evidence in support of the
finding of the lower Courts. In the circumstances, the High
Court was not entitled to reassess the evidence and arrive
at a different conclusion. Besides the onus was on the
respondents to prove the fact of the appellant No. 1s
consent. When items 3 to 6 were being claimed by the
respondents to be the self-acquired property of Hiri, it
could hardly be contended in the same breath that the
appellant No. 1 had consented to the gift of items 3 to 6
on the basis that it was coparcenary property and the
appellant No. 1 the only other coparcener. The High Court
also erred in its view on the effect of consent on a gift
which may otherwise be void. This Court in Ammathayee alias
Perumalakkal and Another V. Kumaresan alias Balakrishnan
and Others AIR 1967 SC 569 summarised the Hindu Law on the
question of gifts of ancestral properties in the following
words: Hindu law on the question of gifts of ancestral
property is well settled. So far as moveable ancestral
property is concerned, a gift out of affection may be made
to a wife, to a daughter and even to a son, provided the
gift is within reasonable limits. A gift for example of the
whole or almost the whole of the ancestral moveable property
cannot be upheld as a gift through affection. (See Mullas
Hindu Law, 13th Edn., p.252, para 225). But so far as
immovable ancestral property is concerned, the power of gift
is much more circumscribed than in the case of moveable
ancestral property. A Hindu father or any other managing
member has power to make a gift of ancestral immovable
property within reasonable limits for pious purposes;
(see Mullas Hindu Law, 13th Edn., para 226, p. 252). Now
what is generally understood by pious purposes is gift for
charitable and/or religious purposes. But this Court has
extended the meaning of pious purposes to cases where a
Hindu father makes a gift within reasonable limits of
immovable ancestral property to his daughter in fulfilment
of an antenuptial promise made on the occasion of the
settlement of the terms of her marriage, and the same can
also be done by the mother in case the father is dead.( See
Kamala Devi v. Bachu Lal Gupta, 1957 SCR (AIR 1957 SC
434).
The Karta is competent or has the power to dispose of
coparcenary property only if (a) the disposition is of a
reasonable portion of the coparcenary property and (b) the
disposition is for a recognised pious purpose. The High
Court has not come to any conclusion as to whether the gift
of items 3 to 6 by Hiri to the respondent No. 2 was within
reasonable limits or in fulfilment of an antenuptial promise
made on the occasion of the settlement of the terms of the
respondent No.2s marriage. It must be taken, therefore,
that the findings of the lower Courts on both counts were
accepted. That being so, Hiri could not have donated items
3 to 6 to respondent No. 2 and the deed of gift dated
9.6.71 was impermissible under Hindu Law. The question is –
could such an alienation be made with the consent of the
appellant No. 1? It is arguable that there is a
distinction between a void disposition and a voidable one,
and that the gift in favour of the respondent No. 2 being
void cannot be made even with the consent of the appellant
No.1. However, it is not necessary to decide the issue in
the view that we have taken in this case. This Court in
Guramma V. Mallappa AIR 1964 SC 510 has envisaged three
situations of voidable transactions. It was held that a
managing member may alienate joint family property in three
situations namely: (i) legal necessity, or (ii) benefit of
the estate or (iii) with the consent of all the coparceners
of the family. Where the alienation is not with the consent
of all the coparceners, it is voidable at the instance of
the coparcener whose consent has not been obtained.
Needless to say where there is only a sole surviving
coparcener and no other member of the family who has a joint
interest in the property, there are no fetters on the
alienation of the property. Assuming that the principle
enunciated in Guramma V. Mallappa (supra) would apply to
void alienations of joint family property, the question of
consent of all interested parties would still remain. The
rationale behind the impermissibility of certain
dispositions of coparcenary properties is the protection of
the interest of other coparceners. Where other persons have
an interest in coparcenary property, whether inchoate or
otherwise, and willingly acquiesce in the depletion of such
interest for whatever purpose, such a disposition would be
permissible. In this case, apart from the appellant No. 1,
if the other heirs of Hiri had such an interest, merely
getting the consent of the appellant No. 1 would not do.
The impugned deed was executed in 1971, prior to Hiris
death in the same year. By this time, the Hindu Succession
Act, 1956 had come into force. The proviso to section 6 of
the 1956 Act ( considered at greater length later in the
judgment) now provides that the deceaseds interest in
Mitakshara coparcenary property does not devolve by
survivorship if the deceased leaves surviving him female
relatives specified in class I of the Schedule.
Consequently, the interest of the surviving coparcener to
the deceaseds coparcenary share, in such a case, no longer
survives and his consent to depletion of his interest in
joint family property would not, therefore, make a gift of
coparcenary property otherwise invalid, valid. Consent in
such a case would have to be obtained from all the persons
who could claim a share in the deceased coparceners
interest. The appellants 2, 3 and 4 as well as both the
respondents are class I heirs of Hiri. It is not the case
of the respondents that the appellants 2, 3 and 4 had
consented to the gift. We are, therefore, of the opinion
that the finding of the High Court on the validity of the
deed of gift dated 9.6.71 is unsustainable and it is
accordingly set aside. The next question is the
applicability of Section 8 (1) (d) of the Mysore Act. It
may be stated at the outset that while we affirm the
conclusions reached as to the shares of the parties, it
appears to us that the High Court has misconstrued the
provisions of Section 8 (1) (d). Section 8 reads:
8. Certain females entitled to shares at partition.
(1) (a) At a partition of joint family property between a
person and his son or sons, his mother, his unmarried
daughters and the widows and unmarried daughters of his
predeceased undivided sons and brothers who have left no
male issue shall be entitled to share with him.
(b) At a partition of joint family property among
brothers, their mother, their unmarried sisters and the
widows and unmarried daughters of their predeceased
undivided brothers who have left no male issue shall be
entitled to share with them.
(c)Sub-sections (a) and (b) shall also apply mutatis
mutandis to a partition among other coparceners in a joint
family.
(d) Where joint family property passes to a single
coparcener by survivorship, it shall so pass subject to the
right to shares of the classes of females enumerated in the
above sub-sections.
(2) Such share shall be fixed as follows: –
(a) in the case of the widow, one-half of what her
husband, if he were alive, would receive as his share;
(b) in the case of the mother, one-half of the share
of a son if she has a son alive, and, in any other case,
one- half of what her husband if he were alive, would
receive as his share;
(c) in the case of every unmarried daughter or sister,
one-fourth of the share of a brother if she has a brother
alive, and, in any other case, one-fourth of what her
father, if he were alive, would receive as his share:
provided that the share to which a daughter or sister is
entitled under this section shall be inclusive of, and not
in addition to, the legitimate expenses of her marriage
including a reasonable dowry or marriage portion.
(3) In this section, the term widow includes, where
there are more widows than one of the same person all of
them jointly, and the term mother includes a step- mother
and, where there are both a mother and a step- mother, all
of them jointly and the term son includes a step-son as
also a grandson and a great grandson; and the provisions of
this section relating to the mother shall be applicable
mutatis mutandis to the paternal grandmother and great
grandmother.
(4) Fractional shares of the females as fixed above
shall relate to the share of the husband, son, father or
brother as the case may be and their value shall be
ascertained by treating one share as allotted to the male
and assigning therefrom the proper fractional shares to the
female relatives.
5. Each of the female relatives referred to in sub-
section (1) shall be entitled to have her share separated
off and placed in her possession.
Provisos: – Provided always as follows: – (i) No
female relative shall be entitled to a share in property
acquired by a person and referred to in Section 6, so long
as he is alive;
(ii) No female whose husband or father is alive shall
be entitled to demand a partition as against such husband or
father, as the case may be;
(iii) A female entitled to a share in any property in
one capacity of relationship shall not be entitled to claim
a further or additional share in the same property in any
other capacity.
Illustration: A and his son B effect a partition of
their family property. A has a mother and two unmarried
daughters. Their shares will be as follows: –
Father .. .. 1 Son .. .. 1 Mother .. .. ½ Two
daughters .. .. ¼ each The property will be divided in the
above proportion, the father getting 1/3, the son 1/3, the
mother 1/6 and each daughter 1/12.
Clauses (a), (b), (c) and (d) of sub-section (1) of
Section 8 deal with four separate situations. Clause (a)
deals with a partition of joint family between a person and
his sons. Clause (b) deals with the partition of joint
family property among brothers, clause (c) applies to a
partition among other coparceners in a joint family. Clause
(d) provides for a situation where joint family property
passes to a single coparcener by survivorship. The female
members who have been declared to be entitled to shares are
the mother of the concerned coparcener, his unmarried
daughters and widows and unmarried daughters of pre-deceased
sons and undivided brothers. At this stage, it would be
appropriate to refer in detail to relevant portions of
Section 6 of the 1956 Act: 6. Devolution of interest in
coparcenary property. – When a male Hindu dies after the
commencement of this Act, having at the time of his death an
interest in a Mitakshara coparcenary property, his interest
in the property shall devolve by survivorship upon the
surviving members of the coparcenary and not in accordance
with this Act.
Provided that, if the deceased had left him surviving
a female relative specified in class I of the Schedule or a
male relative specified in that class who claims through
such female relative, the interest of the deceased in the
Mitakshara coparcenary property shall devolve by
testamentary or interestate succession, as the case may be,
under this Act and not by survivorship.
Explanation 1. For the purposes of this section,
the interest of a Hindu Mitakshara coparcener shall be
deemed to be the share in the property that would have been
allotted to him if a partition of the property had taken
place immediately before his death, irrespective of whether
he was entitled to claim partition or not.
Explanation 2 x x x x x x x x
(Emphasis supplied)
It is not in dispute that the Mysore Act deals with
Hindu Mitakshara coparcenary rights. This is also clear
from the definition of Hindu in section 3 (c) of the
Mysore Act. Section 4 of the 1956 Act gives overriding
effect to the 1956 Act in so far as any law governing Hindus
is inconsistent with the provisions of the 1956 Act.
Reading the proviso to section 6 of the 1956 Act with
section 8 of the Mysore Act, it is clear that where the
female members sought to be protected under Section 8 of the
Mysore Act are in fact Class I heirs of a deceased
coparcener, his interest in the joint family property cannot
pass by survivorship at all. Thus the question of it
passing subject to the rights of any class of females under
Section 8 (1) (d) of the Mysore Act does not also arise.
This would mean that Section 8 (1) (d) of the Mysore Act has
been superseded by the proviso to Section 6 of the 1956 Act
to the extent stated. The decision in Gurupad Khandappa
Magdum Vs. Hirabai Khandappa Magdum & Ors. 1978 (3) SCR
671 is an authority for the proposition that where a female
is entitled to a share in coparcenary property on partition,
then by virtue of Explanation I to Section 6 of 1956 Act,
she continues to be so entitled despite the fact that no
partition may actually have taken place prior to the
coparceners death. This Court held that Explanation I to
Section 6 covered a situation where a Hindu coparcener dies
without actual partition having taken place. In such event,
the Court will have to assume that a partition had in fact
taken place immediately prior to the death of the coparcener
concerned and grant shares on the basis of such notional
partition. This Court also held that the share of the
female member on such partition was in addition to any share
which she may get as an heir of the deceased coparcener.
[See also State of Maharashtra V. Narayan Rao 1985 (3) SCR
358; AIR (1985) SC 716, 721]. Reliance by the respondents
on the decision of this Court in Gurupad Khandappa Magdum V.
Hirabai Khandappa Magdum and Ors. 1978 (3) SCR 671 to
contend that the respondents were entitled to shares in the
coparcenary property by virtue of Section 8 (1) (d) of the
Mysore Act is misplaced because as already noted Section 8
(1) (d) in terms does not apply in the facts of this case
because of the proviso to Section 6 of the 1956 Act. Under
Explanation I to Section 6 of the 1956 Act , the Court will
have to ascertain what the shares of the parties would be as
if Hiri had sought for partition just before his death. The
only other coparcener being the appellant No.1, the
partition would have to be effected according to Section 8
(1) (a) which provides for partition between a coparcener
and his son/sons. Under Section 8 (1) (a) the female
members who could claim a share in the coparcenary
properties would be Hiris mother, his unmarried daughter (
the respondent no.2) and the widow or unmarried daughters of
any predeceased sons or brother. Admittedly, Hiris mother
was not alive in 1971. Nor had Hiri any predeceased son or
brother. The sole female member entitled to a share under
Section 8 (1) (a) therefore is the respondent No.2. The
appellant being the other coparcenar would get ½ of the
coparcenary properties on partition. In terms of Section 8
(2) (c) of the Mysore Act, his sister, the respondent no.2
would get ½ her brothers share, namely 1/4th of the
coparcenary properties. The remaining interest would belong
to Hiri. It has not been disputed before us that under
Section 8 of the 1956 Act, each of the parties to this
appeal is entitled to claim a share in Hiris interest as
his Class I heir. On the basis of the ratio in Gurupad
Khandappa Magdums case (supra) , the respondent No.2 would
also be entitled to a share in Hiris interest as an heir on
intestacy, under Section 8 of the 1956 Act. To sum up: if
there were an actual partition of the coparcenary properties
between Hiri and his son, under Section 8 (1) (a) of the
Mysore Act, his son, the appellant No. 1 would get ½ share.
His wife, namely the respondent No. 1, and the appellants
2, 3 and 4 would not get any share in the coparcenary
property at all. But the respondent No. 2 as the unmarried
daughter would get a share calculated in terms of Section 8
(2) (c) of the Mysore Act, namely, 1/4th of the share of her
brother, namely, the appellant No. 1 in addition to her
share as the heir of Hiri. All the appellants as well as
both the respondents are each entitled to an equal share in
Hiris interest as heirs on intestacy. The High Court has,
therefore, correctly calculated the shares of the parties
and we affirm its conclusion in this regard. The appeal is
accordingly partly allowed. We hold that items 3 to 6 of
the Schedule to the plaint are available for partition as
coparcenary property according to the shares declared by the
High Court. There will be no order as to costs.
