Arokia Manikaran and Another vs Soweriyaru Manikaran and Others

Gangadhara Menon, J.—This is an appeal by Defendants 1 and 13 from the judgment and decree of the learned District Judge of Trichur in O.S. 79 of 1120 of his Court. The Plaintiff and Defendants 2 to 4 are the children of one Selvamuthu deceased. The latter and Defendant 1 were direct brOrs. . Thereafter Michael died in the year 1084 leaving some properties including Ex. F mortgage right, a leasehold right in respect of certain properties called the Nellisseri properties and some chitty asteets. According to the Plaintiff, the parties through Christians are followers of Hindu Law, and on the death of Michael, Defendant 1 his Eldest son, became the manager of the joint family consisting of deceased Selvamuthu, Defendant 1 and Ors. . It was alleged that the Plaintiff schedule properties are acquisitions made by Defendant 1 in his capacity as manager with the help of the joint family assets. The Plaintiff has therefore brought the suit for partition of his 1/8 share of the plaint properties.

Defendant 1 and the other Defendants who resisted the Plaintiff''s suit contended that Selvamuthu had obtained even during his lifetime his share of the properties left by Michael, and that the properties scheduled to the plaint are all the separate properties of Defendant 1 over which Selvamuthu''s children could not lay any claim to. The learned Judge found that the Plaintiff and Defendants 2 to 4 are each entitled to 1/8th share in the plaint schedule properties and that Defendant 1 is entitled to the remaining one-half and passed a preliminary decree for partition in accordance with those findings.

The parties in this case are Vania converts to Christianity. It is contended before us that even though the learned Judge was of the view that "it is misleading to ascribe to a Vania convert family the status of a joint family as envisaged by the term in the case of a Hindu Mitakshara coparcenary", he has imported the very presumptions available under Hindu Law regarding acquisitions by a manager of a joint Hindu family in the consideration of the question whether the plaint properties acquired in the name of Defendant 1 are properties over which the Plaintiff and Defendants 2 to 4 are entitled to a share as contended for by them. The question whether notwithstanding the conversion to Christianity the family of the parties continue to be an undivided joint family with reference to acquisition, management and enjoyment of the property in coparcenary as known to Hindu was argued before us at some length by he learned advocate on either side. But it to pears to that it is unnecessary to consider his question in this case. It is at any rate admitted that after the death of Michael, his children inherited his properties as tenants-in-common. Further it is clearly established by the evidence in the case that Defendant 1 was n exclusive possession and enjoyment of those properties and was dealing with them:

Where a party acquires certain, property with the help of the funds which belong to him jointly with Ors., the co-owners are entitled in equity to their proportionate interest in the newly acquired properties.

(Vide - ''Jai Indar Bahadur v. Sheo Indar Bahadur'' AIR 1924 Oudh 218 (A) ). Therefore even on the basis that Defendant 1 and the Plaintiff''s father were only co-owners of the properties left by Michael at the time of his death, if it is found that Defendant 1, one of the co-owners acquired the plaint properties with the funds that were available in his hands to which deceased Selvamuthu was jointly entitled, there is no doubt that the Plaintiff and Defendants 2 to 4 as the children of Selvamuthu are entitled to their share of those properties. The question therefore is whether the plaint properties are acquired with the help of the properties left by Michael which were in the hands of Defendant 1.

(3-5) (After considering the evidence, the judgment proceeded:) We are therefore clearly of the view that Ex. XLIV mortgage was acquired partly out of the corpus of common assets belonging to Defendant 1 and partly out of the funds that were available in the hands of Defendant 1 by way of income from common properties.

The next investment in the plaint properties was under Ex. XLV dated 25-9-1103. That was a mortgage executed by the owners of the equity of redemption of Ex. XLIV properties for an additional consideration of Rs. 3000. The consideration was made up of Rs. 675 representing the arrears of interest under Ex. XLIV, Rs. 900/- previously borrowed from Defendant 1 to pay off some arrears of pattom and Rs. 1425 paid in cash on the date of the document. Ex. XLV acquisition comes nearly nine years after Ex. XLIV. During this period, the income from the common properties especially the Nellisseri properties must have accumulated in the hands of Defendant 1. It is not shown that any unusual expenses for any common purposes had to be met by Defendant 1. Of course there was the 2nd marriage ceremony of Selvamuthu. But the expenses thereof was only Rs. 300 as sworn to by D.W. 4. EX. 50 chitty had terminated in 1099 and no money had to be paid on that account from that date. It is also seen that Defendant 1 had no independent sources of income. In these circumstances we are clearly of the view that the cash payments for Ex. XLV were all made from out of the common funds available with Defendant 1. The very facts that Ex. XLV amount was advanced as a further charge on Ex. XLIV property and that a portion of the consideration therefore consisted of the arrears of interest due under the prior investment under Ex. XLIV mortgage acquired out of the common funds make it clear that the acquisition was intended for common benefit. Therefore, we agree with the conclusions of the lower Court that Ex. XLV acquisition enured for the benefit of Selvamuthu and Defendant 1.

The properties charged under Ex. XLV were the equity of redemption of the properties covered under Ex. XLIV and also soma other properties which were subject to some prior charges. Defendant 1 instituted a suit on the basis of Ex. XLV in O.S. 141 of 1108 and obtained a decree. Thereafter he put the decree in execution and brought the equity of redemption of the properties mortgaged to sale, purchased them for the decree-debt in Court auction on 16-3-1110 and obtained delivery. Under Ex. XXIV, Defendant 1 obtained an assignment of the prior mortgage right over the property for Rs. 3000. The amount there under was raised by him under Ex. VII. He renewed Ex. VII debt under Ex. XV. Thereafter, he cleared the prior charges on the properties by executing a usufructuary mortgage under Ex. XI in favour of Defendants 5 and 6. The prior debts charged on the properties were cleared by Defendant 1, partly out of Ex. XI funds, partly out of certain funds obtained by him from the chitties to which he subscribed and partly out of the funds obtained by sate of portions of the property that was purchased in Court auction. The properties described in the plaint schedule are the remaining properties purchased in Court auction. It can thus be seen that the properties scheduled to the plaint are the properties acquired by Defendant 1 cut of common funds, i.e., out of funds common to himself and his brother Selvamuthu. We are therefore in agreement with the conclusion of the learned Judge that the Plaintiff and Defendants 2 to 4 are together entitled to a half share in these properties, each of them having a right to a 1/3th share. The remaining 1/2 will, of course, go to Defendant 1. Ex. XI mortgage dated 10-10-1118 executed by Defendant 1 for the plaint properties is for Rs. 7500. It is seen that the Plaintiff''s mother on behalf of her minor children issued a registered notice Ext. VI to Defendant 1 for the partition of their half share over the plaint schedule properties on 2-5-1113. Defendant 1 did not comply with that request but continued to be in possession of the properties and dealt with them as if they belonged to him exclusively. Defendant 1''s dealing with the properties thereafter cannot in any sense be said to be on behalf of the Plaintiff and Defendants 2 to 4 as well. In fact, he dealt with the properties in spite of the claim of Plaintiff and Defendants 2 to 4 over the properties. The learned Judge was therefore right in his view that any debt incurred by Defendant 1 after 1113 could not be held to be a common debt binding on the share of the Plaintiff and Defendants 2 to 4 also. The learned Judge finds that out of the consideration for Ext. XI, only a sum of Rs. 4365-14-0 went in discharge of prior debts valid and binding on the Plaintiff and Defendants 2 to 4 also. It is clear from the evidence in the case that out of the consideration for Ext. XI nothing more than this amount was applied towards the discharge of the debts binding equally on Plaintiff and Defendants 2 to 4. We therefore uphold the finding of the learned Judge that Ext. XI debt is binding on Plaintiff and Defendants 2 to 4 only to the extent of Rs. 4365-14-0. There is no force in the contention of the Plaintiff that even this amount cannot be treated as a common debt.

Objection was also taken by the Appellant to the finding of the learned Judge regarding the annual income of the plaint properties. On a consideration of the evidence on this point, we think that the estimate of the learned Judge errs if at all only on the side of moderation. We do not therefore find our way to disturb the finding of the learned Judge.

Defendants 2 to 4 in their memorandum of objections contend that the mortgage rights under Exts. XXXII, XXXIII and XXXIV are also acquisitions made out of common funds liable for division. The evidence of D.Ws. 1, 2 and 3 clearly establishes that these mortgages were taken by Defendant 1 with the dowry amount obtained by him from his wife''s father. There is absolutely no evidence in the case that any portion of the common funds had been utilised for the acquisition of these properties, Therefore we uphold the finding of the learned Judge that these mortgage rights are not liable for division.

In the result, in confirmation of the decree of the lower Court, we dismiss the appeal with costs. The memorandum of objections filed by the Plaintiff, and Defendants 2 to 4 are also dismissed with costs.