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TMI Blog1963 (12) TMI 31X X X X Extracts X X X X X X X X Extracts X X X X ..... hich is an item of jewellery was described by her in Schedule 4 and the same was claimed by her on the ground that it had been presented to her by her father before he died on the 20th March, 1947. The case set out in the plaint showed that according to the appellant, the properties in Schedules 1, 2 and 3 belonged exclusively to her mother and when she made a claim against the respondents in that behalf, they challenged her title. In that connection, the appellant relied on the fact that a sale-deed had been executed in favour of her mother on the 1st April, 1942 for a consideration of ₹ 28,000 by Mr. Gibs under which several pieces of land together with all buildings and erections standing thereon and movable property consisting of articles of furniture and other things set out in the Schedules attached to the sale-deed (Exhbt. F), were covered. Respondent No. 1 Loganatha Mudaliar alleged that on the 17th February, 1947, the father of the appellant had executed a will under which he had been appointed an executor and that as such executor, he obtained a probate under the said will, got possession of the properties and handed them over to Respondent No. 2 Mudaliar Sang ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elief claimed by her. Against this decision, the appellant preferred an appeal before the High Court of Mysore (R.A. No. 171 of 195152). The High Court has held that the main property described in Sch. I did not belong to the appellant's mother, but to her father. It found that the sale-deed in respect of the property was taken by the appellant's father in the name of the appellant's mother benami. Having held that the appel- lant had not established her title to the said property, the High Court did not think it necessary to consider the validity of the finding of the -trial Judge that the suit was bad for non-joinder of necessary parties. It also did not think it necessary to consider whether the will had been proved or not. The appellant, however, succeeded before the High Court in respect of one minor point and that was in relation to her claim for the gold belt. The High Court has ordered that Respondent No. 3 should return the said gold belt to the appellant and that the appellant was not bound to pay to Respondent No. 3 the amount claimed by him. The result was that with a very slight modification, the decree passed by the trial Court was confirmed, though on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and unambiguously on the basis that the title to the property vests in the appellant's mother. In the course of this letter, she says that about the 10th May, 1945, the authorities of the Hindustan Aircraft approached her through her husband for permission to put up and install a few electric lights against the runway to the length -of about 700 or thereabouts, and that she gave them the permission on the strict understanding that the rest of her plantation should not be disturbed. Similarly, on the 28th May, 1946, the appellant's father wrote to the Officer-in-charge Claims, Bangalore, acknowledging receipt of a cheque which had been issued by the said Officer in favour of the appellant's mother for ₹ 2511-3-0. On the 23rd May, 1946, the appellant's father wrote a letter to his wife, and some of the statements made in it clearly suggest that the appellant's father admitted his wife's title to the properties in question. Mr. Loganatha Mudaliar, says the letter, told me that you had said to write some Estate Will. We have talked about this already. You ought not to have told him without telling me again Money also should be given along with estat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of the brothers was, therefore, fatal to the suit. In fact, as we have already indicated, the trial Court had dismissed the appellant's suit on this ground. The decision about the question as to the appellant's title to this property would thus depend upon the construction of the relevant provisions of the Act. Section 10 is relevant for the purpose. Section 10(1) defines 'Stridhan' as meaning property of every description belonging to a Hindu female, other than property in which she has, by law or under the terms of an instrument, only a limited estate. Section 10(2) prescribes an inclusive definition of the word 'Stridhan' by clauses (a) to (g). The appellant contends that the property in question falls under s. 10(2) (b), whereas according to the respondents it falls under s. 10(2) (d). There is no doubt that if s. 10(2) (b) takes in the property, the appellant would be exclusively entitled to it and the plea of non- joinder of her brothers would fail. On the other hand, if s. 10 (2) (d) applies to the property, the appellant will not be exclusively entitled to the property and her brothers would be necessary parties to the suit. In that case the pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y acquired by a female by purchase, agreement, com- promise, finding or adverse possession. The respondents urged that one has merely to read clause 10(2)(d) to be satisfied that the purchase of the property in this case falls squarely under it. We have carefully considered the arguments thus presented to us by the respective parties and we are satisfied that it would be straining the language of s. 10(2)(b) to hold that the property purchased in the name of the wife with the money gifted to her by her husband should be taken to amount to a property gifted under s. 10(2) (b). The argument about the substance of the transaction is of no assistance in the present case, because the requirement of s. 10(2) (b) is that the property which is the subject-matter of devolution must itself be a gift from the husband to the wife. Can we say that the property purchased under the sale-deed was such a gift from the husband to his wife? The answer to this question must clearly be in the negative. With what funds the property is purchased by the female is irrelevant for the purpose of s. 10(2)(d); so too the source of the title to the fund with which the said property was purchased. All that is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h of the said two clauses takes in the property in question. This appeal was argued before us on the, 22nd August, 1963. At the said hearing, we had suggested to the parties to consider whether they could amicably settle the dispute between themselves. Accordingly, we allowed the matter to stand over to enable the parties to negotiate the settle- ment, if possible. Ultimately, on the 13th September, 1963, the Appellant's counsel reported to the office that no settlement was possible. However, in the meanwhile, on the 6th September, 1963, the appellant's counsel filed an application for leave to add the appellant's two brothers T. Narayanaswamy and T. Vasudevan as co-plaintiffs to the plaint, or if they are not willing to join as co-plaintiffs, then as defendants 4 and 5. This application is opposed by respondents 1 and 2. That is how this appeal was placed before the same Bench once again on the 13th December, 1963. We do not think there is any justification for allowing the appellant to amend her plaint by adding her brothers at this late stage. We have already noticed that the plea of non-joinder had been expressly taken by respondents 1 and 2 in the trial Court and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e entitled to claim any relief against the respondents. The estate can be represented only when all the three heirs are before the Court. If the appellant per- sisted in proceeding with the suit on the basis that she was exclusively entitled to the suit property, she took the risk and it is now too late to allow her to rectify the mistake. In Naba Kumar Hazra Anr. v. Radheshyam Mahish Ors. A.I.R 19 31 P.C. 229 the Privy Council had to deal with a similar situation, In the suit from which that appeal arose, the plaintiff had failed to implead co-mortgagors and persisted in not joining them despite the pleas taken by the defendants that the co- mortgagors were necessary parties and in the end. it was urged on his behalf that the said co-mortgagors should be allowed to be impleaded before the Privy Council. In support of this plea, reliance was placed on the provisions of O. 1 r. 9 of the Code. In rejecting the said prayer, Sir George Lowndes, who spoke for the Board observed that they are unable to hold that the said Rule has any application to an appeal before the Board in a case where the defect has been brought to the notice of the party concerned from the very outset of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Civil Procedure calling upon the appellant to furnish further particulars with regard to her claim to the property in question in view of s. 12 of the Mysore Hindu Women's Rights Act. She furnished the following particulars on February 17, 1948: The property detailed in Schedules 1 and 11 was all conveyed to Rajambal under one sale deed as stated in paragraph 5 of the plaint. She stood by her husband in his adversity sacrificing her possessions for him which she got as presents from her own parents. He was deeply attached to her, and indeed they were a loving couple. Out of love, affection and gratitude and with a view to make her self- sufficient, he provided the money to acquire the property for her own, absolute use, which she while alive had even decided and announced to give away to the plaintiff ultimately. The appellant's case, therefore, clearly is that the purchase money was provided by her father for acquiring property for the absolute use of her mother. By negativing the finding of benami made by the High Court we are in effect holding that the property was acquired by the appellant's father with his own money for her mother. In this state of affairs; ..... X X X X Extracts X X X X X X X X Extracts X X X X
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