9911796707
TMI Blog2000 (10) TMI 985X X X X Extracts X X X X X X X X Extracts X X X X ..... Jinachandra Gowder as per registered partition deed executed on 20-1-1958. Item Nos. 2 and 3 were purchased by Jinachandra Gowder utilising the Income derived from item No. 1. Item Nos. 4 and 5 were excluded from the partition deed of the year 1958. Thus, the entire plaint schedule properties jointly belong to the plaintiffs and the defendants after the death of Jinachandra Gowder. The parties are governed by Hindu Mitakshara Law. On the allegation that after the death of Jinachandra Gowder the defendants are taking income, the plaintiffs filed the above suit for partition and recovery of possession with mesne profits. It is also alleged in the plaint that the defendants had already sold timber worth Rs. 26,000/- from the plaint schedule property. So, they claimed 2/16 share over the plaint schedule property and also over the money obtained by sale of the timber. Jinachandra Gowder had deposited Rs. 13,870/- at Varadoor Cooperative Bank. The plaintiffs also claim share over the said money. 4. Defendants 1 to 3 filed written statement. They would contend that as per the registered partition deed of 1958, the plaintiffs and the second defendant had taken their share from the joint fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion) Act, 1976, hereinafter referred to as Act XXX of 1976 (State Act) when the provision of the State enactment is repugnant thereto and that the later provision is void under Article 254(1) of the Constitution of India. It is also submitted that the lower Court erred in holding that Section 8 and not Section 6 of Act XXX of 1956 apply to properties retained by father overlooking the direct express provision in para 1 of Section 6 of the Act XXX of 1956. 8. The questions of law that arise for consideration in this case are the following :-- (i) Whether the State enactment, Act XXX of 1976, can override the Central enactment, Act XXX of 1956. (ii) Whether the Act XXX of 1976 can override Section 6 of Act XXX of 1956 under the provisions of Article 254(1) of the Constitution of India. (iii) Whether a Hindu converted into Muslim can claim any right under Central Act XXX of 1956 or Kerala Act XXX of 1976. (iv) Whether the disrupted members can claim a right over the property of one of the disrupted members after his disruption as it has become joint family property by birth of a male member 9. Admittedly, the plaint schedule items 1, 4 and 5 originally belonged to the joint family of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e among all the members of that undivided Hindu family in respect of such property and as if, each one of them is holding his or her share separately as full owner thereof. From the above section, it can be seen that on the date of commencement of the Act XXX of 1976, the status of coparcenary in a joint family property has been lost and the coparceners have become tenants in common thereafter as if a statutory partition has taken place among all the coparceners. Therefore, after the commencement of the Act XXX of 1976, the coparceners attained the status as tenants in common, which means Jinachandra Gowder and the 5th defendant get definite shares in the property. The learned counsel for the appellants submitted that Act XXX of 1956 being an enactment passed by the Parliament, it prevails over the provisions of the Act XXX of 1976, which is only a law passed by the Legislature of the State. Article 254 of the Constitution reads as follows :-- 254. (1) if any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of any existing law with respect to one of the matters ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been reserved for consideration under Article 200, it will prevail notwithstanding its repugnancy to an earlier law of the Union. Thus, even if there is repugnancy, the law made by the Legislature of the State, if it was reserved for consideration of the President and has received his assent, will prevail in the State. Thus, from the Act XXX of 1976, it can be seen that it was reserved for the consideration of the President and the President has given his assent on 10-8-1976. Therefore, the argument of the learned Counsel for the appellants that the State enactment cannot override the Central enactment cannot be accepted as correct. 11. The appellants rely on Section 6 of the Act XXX of 1956 to succeed to the estate of the deceased Jinachandra Gowder. Section 6 relates to devolution of interest in coparcenary property. On the date of death of Jinachandra Gowder, there was no coparcenary as the same has been abolished by the Act XXX of-1976. Therefore, Section 6 of the Act XXX of 1956 is not applicable to the facts of this case. By virtue of Section 4 of the Act XXX of 1976, the joint tenancy has been replaced by tenancy in common. Thus, Jinanchandra Gowder and the 5th defendant ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... holding that the defendant being a co-owner, the plaintiffs cannot restrain him from plucking coffee and pepper from the plaint schedule property. Aggrieved by the said decree and judgment, the plaintiffs filed A.S. 60/1990 before the Sub Court, Sulthan Bathery. The learned Sub Judge dismissed the appeal, confirming the judgment and decree of the trial Court. Aggrieved by the said decree and judgment, the plaintiffs have filed this Second Appeal. 15. In view of my findings in S.A. 223/ 1994, the defendant being a co-owner, the plaintiffs are not entitled to file a suit for damages if the defendant has taken any income from the property. Therefore, this Second Appeal is liable to be dismissed. S.A. 958/1989-E: 16. This appeal is directed against the decree and judgment in A.S. 36/1987 of the Sub Court, Sulthan Bathery, which was filed against the decree and judgment in O.S. 321/1986 of the Munsiffs Court, Kalpetta, The first appellant is the second wife of Jinachandra Gowder and appellants 2 to 5 are her children through Gowder. O. S. 321/1986 was a suit filed by the appellants for eviction with arrears of rent. Jinachandra Gowder let out a building to the defendant therein on a mo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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