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TMI Blog1973 (6) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... s for partition and for recovery of mesne profits. Their case was that in the beginning of 1961, there was a division of the family properties as between the three brothers by the intervention of panchayatdars and a list was prepared allotting the properties to all the three brothers. According to the plaintiffs, the plaint A schedule properties were allotted to Chandrasekhara, the plaint B Schedule properties were allotted to Gnanasekhara, the plaint C Schedule properties were allotted to the appellant and the plaint D Schedule properties were kept in common. Their further case was that the parties contemplated execution of a regular partition deed later; that notwithstanding the preparation of the list, it was the 1st defendant who was looking after all the properties; that the 1st defendant did not give the share of the produce out of the properties belonging to the deceased Gnanasekhara as well as the properties kept in common, namely, the plaint D Schedule properties: and that it occasioned the institution of the suit. Consistent with their case that a partition had already taken place in 1961, the plaintiffs claimed recovery of possession of the plaint B Schedule properties a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . He appended a list of alleged debts due by the family to the written statement and contended that they were family debts binding on all the three brothers and therefore provision should be made for the discharge of those debts in the suit itself. 3. On the basis of these pleadings, the following issues were framed by the trial court- (1) Whether the partition said to have been effected among the brothers as stated in the plaint true, valid and binding on all the brothers including defendants 1 to 7 ? (2) Is the sale of casuarina for Rs. 30,000/- by 1st defendant true and are the plaintiffs entitled to a one-third share ? (3) Is the denial of the existence of the properties in the written statement of the 1st defendant true and correct ? (4) Are pooja and utsavams to be performed by the family and should provision be made for them in any partition decree in this suit ? (5) Are the debts stated in the written statement of the first defendant true, existing and binding on the family ? (6) Is the first defendant liable to render account ? (7) To what relief, are the plaintiffs entitled ? 4. On a consideration of the materials placed before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... point is, the finding of the learned trial Judge that the case of the appellant that Items 38 to 46 covered by the plaint D Schedule belonged to Maragathammal and not to the joint family is not true. Mr. K. N. Balasubramaniam, learned counsel for the appellant, did not challenge this finding, because on the finding the appellant is benefited by the inclusion of those properties also as divisible properties and in any event the party aggrieved is Maragathammal who has not been impleaded as a party either to the suit or to the appeal. 6. Under these circumstances, Mr. K. N. Balasubramaniam, learned Counsel for the appellant, urged the following three points in support of this appeal and they are: (1) Even in the written statement, the appellant had indicated the debts due by the family to different parties and a list was appended. Notwithstanding this, the plaintiffs had not filed any rejoinder to deny the truth or binding nature of the debts and therefore the learned trial Judge was not justified in finding that the said debts were not true, simply because of discrepancies in the evidence of the witnesses. (2) The learned trial Judge erred in not creating a charge over the suit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he evidence His Lordship proceeded)- These were the witnesses examined in support of the different debts put forward by the appellant herein and for the reasons indicated above, we agree with the conclusion of the learned trial Judge that none of these debts had been found to be true or binding on the joint family. 8. Mr. K. N. Balasubramaniam contended that even if the finding of the trial Judge stands with regard to these debts, there were other debts with reference to which no witnesses were examined and the truth and binding nature of these debts will have to be gone into at the final decree proceedings. We are unable to accept this argument. With regard to all the debts, either the matter was reserved to be gone into in the final decree proceedings or it was established during the course of the trial of the suit itself. It could not be that with regard to some debts alone the matter should be investigated in the course of the trial of the suit itself and with regard to some other debts, it should be reserved for consideration in the final decree proceedings. As a matter of fact no such request for reservation was made and therefore the only inference possible is that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this argument, still it is not the case of the appellant that there were no trustees for the temple and therefore he had no opportunity of examining the said trustees of the temple to prove the performance of the utsavam in the temple. Having regard to the utter lack of evidence to make out the case of the appellant in this behalf, we are clearly of the opinion that the learned trial Judge was fully justified in holding that the appellant had not established that the family was under an obligation to perform either the Guru pooja or the utsavam so as to justify and warrant the creation of charge in respect thereof over the properties to be allotted to the plaintiffs. 10. This takes us to the third and last point. As we have pointed out already, the case of the appellant was that casuarina trees were sold during the life-time of Chandrasekhara and Gnanasekhara themselves and that they had taken away the moneys and therefore nothing was due to the plaintiffs representing the share of Gnanasekhara. The learned trial Judge has found that the appellant has not established this case and that the casuarina trees were sold only after the death of Gnanasekhara. The learned trial Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itled to ask for an accounting and they will be entitled to an accounting only from the date of the suit. This argument involves the consideration of the rights of the plaintiffs under Section 6 of the Hindu Succession Act, 1956 (Central Act 30 of 1956), hereinafter inferred to as the Act. Since Mr. Balasubramaniam sought to address elaborate argument with regard to this section, it is desirable to extract the said section along with the proviso and the Explanations in full and we do so accordingly. 6. 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 of intestate succession, as the case may be under this Act and not by survivorship . Explanation 1: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er on them rights in the property or interest of the deceased coparcener That object has to be given effect to as provided for in the statute and the said right cannot be whittled or watered down by having recourse to any other provision of customary or traditional Hindu Law. Mr. Balasubramaniam's contention, based on Section 4(1)(a) of the Act, is that the traditional or customary Hindu Law will cease to apply only in respect of matters for which provision has been made in this Act and this Act not having made any provision with regard to the management of the joint family as such and the powers of the kartha of the joint family, the joint family continued and the powers of the Kartha remained intact. In our opinion, the effect of Explanation 1 to Section 6 is to carve out the interest of a deceased coparcener from the joint family property and from the moment of the death of the coparcener concerned, his interest ceases to be coparcenary property and therefore outside the powers and jurisdiction of the Kartha to deal with the same. If the argument of Mr. Balasubramaniam is to be accepted, in conceivable cases, the heirs of a deceased coparcener may get nothing at all. It may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from or accompany it as if the putative state of affairs had in fact existed and effect must be given to the inevitable corollaries of that state of affairs. As held by the Supreme Court in State of Bombay v. Pandurang Vinayak, 1953CriLJ1049 - When a statute enacts that something shall be deemed to have been done, which in fact and truth was not done, the court is entitled and bound to ascertain for what purposes and between what persons the- statutory fiction is to be resorted to and full effect must be given to the statutory fiction and it should be carried to its logical conclusion. Therefore, it follows that the operation of the fiction, namely, notional partition and its inevitable corollaries and incidents is only for the purpose of giving effect to the proviso, namely, devolution of the interest of the deceased in the coparcenary property by way of succession as against survivorship. Consequently, according to our construction of this provision, the joint family or coparcenary continues, but the interest of the deceased coparcener in the coparcenary property is carved out from the entire joint family property and it ceases to form part of the coparcenary propert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ughter and they sued for a partition of the joint family properties. One question that came to be considered was whether a gift made on 12-5-1957 by the kartha of the family after the death of Kalianna Gounder in favour of the sister of Kalianna Gounder could be taken into account for the purpose of ascertaining the property that should be allotted to the widow and daughter of Kalianna Gounder. Based on the provisions contained in the Hindu Women's Rights to Property Act 1937, and the decisions of Courts thereon, it was contended that the interest which the widow and daughter of Kalianna Gounder would take in the joint family property was subject to the essential incidents of the management of the property by the kartha and therefore the property covered by the gift referred to above must be deducted from the entire property and only out of the balance, the share of Kalianna Gounder should be worked out so that the same may be allotted to his widow and daughter. This argument was rejected by the Bench of this Court. After referring to Explanation 1 to Section 6 of the Act, the Bench held- The intendment of this provision is very clear. It is that persons entitled to succe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be represented after his death by the 1st defendant as has been mentioned above, and the plaintiff has failed to implead his legal representatives for about three years after date of death of the 2nd defendant . 16. The next is the decision of a single Judge of the Calcutta High Court in Narayan Prasad Ruia v. Mutuni Kohain. AIR 1969 Cal 69. That arose out of a suit for eviction filed by the Kartha of a Mitakshara family consisting of himself and three minor sons (1) Mahendra Kumar Ruia. (2) Surendra Kumar Ruia and (3) Maheshkumar Ruia. During the pendency of the proceedings, the second of the minor sons, namely, Surendra Kumar Ruia died leaving behind his mother. The question for consideration was whether the suit for eviction could be proceeded with by the father representing the joint family along with two minor sons. The learned Judge after referring to Section 6 of the Act stated- What is seen, therefore, is a notional partition coupled with devolution of such notionally partitioned property upon Surendra Kumar Ruia's mother. What remains then of Narayana Prasad Ruia as the kartha? A Kartha (for) a joint family property is quite an understandable concept ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as a fact and must be given its due effect. The minimum that can be said, therefore, is that when the death of a coparcener takes place in a family falling under the proviso to Section 6, the female heirs like the daughters in the present suit inherit an interest in the joint family property by succession under the Hindu Succession Act, and that interest or share becomes vested in them ..... the property of the joint family Is at that stage partly vested in members who are already members of the coparcenary and partly in some heirs who have nothing to do with the joint family as such. At any rate, the unmarried daughters, who may be member of the family, inherit the interest by succession under the Hindu Succession Act and not under the provisions of the customary Hindu Law. To that extent, they have an independent right which is vested in them and may be continued to be enjoyed jointly until physical separation takes place. With that result following, one thing seems to be clear. The representative character of the kartha is clearly affected. He cannot represent that property which vests in a person other than a coparcener. The nature of the property also suffers to some ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to the coparceners and heirs as coparcenary property and the Kartha in relation thereto therefore cannot exercise his powers as a Kartha. The interest having devolved on various heirs in specified shares and such heirs being tenants in common in relation to that property, the kartha of the joint family property to which the coparceners belong cannot represent the female heirs who are not coparceners. Thus, a reference to the above decisions will clearly support the conclusion we have reached on the effect and scope of Section 6 of the Act. 19. There is yet another circumstance which supports our conclusion. As is clear, the proviso to Section 6 deals not only with intestate succession, but also testamentary succession. Section 30 expressly enables a coparcener to dispose of his interest in the coparcenary property testamentarily. In the event of a testamentary succession, from the very nature of the case, the legatee's interest is crystallised and specified at the moment of the death of the testator. The legatee may be an utter stranger to the entire family. In that event, it cannot be contended that so long as the legatee has not filed a suit for partition, the ka ..... X X X X Extracts X X X X X X X X Extracts X X X X
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