Fathimunnisa Begum vs Tamirasa Rajagopalacharyulu and others

A. Sambasiva Rao, Ag. C.J.

This Letters Patent Appeal, innocuous as it looked when the arguments were commenced, has assumed larger proportions as the arguments advanced. Some questions of law relating to Hindu joint family, widow''s right in it, and the impact of the Hindu Succession Act on these rights have come to be canvassed and consequently have to be answered in this case.

How those arose we shall state in brief. The 1st defendant in Original Suit No. 3 of 1964 on the file of the Subordinate Judge''s Court, Tenali executed Ext. A-1 dated 12-1-1944, a deed of mortgage, for Rs. 3,000/- in favour of Raghavacharyulu, with interest at the rate of Re. 0-9 annas 6 paise per mensem, compound interest with yearly rests. The hypothecated property is a terraced building in Tenali town. The mortgagor himself made three small payments and on 2-5-1944 under Ext. B-1 he sold the hypothecated building to the 2nd defendant, who is the present appellant, subject to mortgage. The purchaser made two payments the second one being on 1-12-51. In 1954 the mortgagee died leaving behind him two sons and a widow. The two sons alone filed Original Suit No. 3 of 1964 on 29th November, 1963, to recover the money due on the mortgage bond after giving credit to the payments. It will have to be noticed that the suit was filed just on the eve of the expiry of the period of limitation from the last payment on 1-12-1951. The second defendant filed her written statement on 21-2-1964 inter alia contending that the suit was not maintainable without the widow, one of the heirs of the mortgagee, and that the rate of interest was usurious. The widow was subsequently added as 3rd plaintiff as heir of the deceased mortgagee and a consequential amendment is made in the plaint saying that she is added as the third plaintiff as one of the heirs of the deceased mortgagee. though the first plaintiff alone as manager of the family could sue. This amendment was effected as per orders of the High Court in C.R.P. No. 1633 of 1966, dated 6-2-1967. The trial court as well as our learned brother, M. Krishna Rao, J., decreed the suit repelling the objections of the second defendant. The trial court decreed the suit as prayed for and the High Court in its judgment awarded interest at the contract rate upto the date of the suit and thereafter at the rate of 5 1/2 per cent, per annum, simple, till the date of payment. Only to this extent the decree was modified. In other respects the decree of the trial court was affirmed. It is against this decree the second defendant has preferred this Letters Patent Appeal.

Sri C. Narasimhacharya first argues that the widow was added as the third plaintiff on 6-2-1967 long after the period of limitation. She was certainly one of the heirs of the deceased mortgagee. The suit filed by the two sons alone was not in proper form and was not therefore maintainable. The impleading of the widow on 6-2-1967, long after the period of limitation was over, could not save the suit claim from the fatal error or defect of not impleading the widow even in the beginning or at least before the period of limitation expired. He strongly relies on the Full Bench decision in P. Govinda Reddy and Others Vs. Golla Obulamma, .

We are not inclined to uphold this objection. The facts as such are not in dispute. The mortgagee died in 1954 leaving behind the two original plaintiffs, who were his sons, and his widow, who was impleaded as the 3rd plaintiff in 1967. In the plaint it was alleged that the original mortgagee, Raghavacharyulu died about ten years back and the plaintiffs 1 and 2 were his sons. Despite repeated demands by the plaintiff the debt was not discharged. Thus, the plaintiffs even in the original unamended plaint proceeded on the assumption that the two sons succeeded to the joint family properties, on the demise of their father, including the asset of the mortgage debt Since it is clearly stated that the debt was due to both of them, by necessary implication it meant that there was no division or partition of the joint family properties or any disruption in the joint family status. Neither the 1st defendant nor the 2nd defendant in their written statements alleged that there was disruption in the joint family status. So it can be safely presumed, on the basis of these averments in the plaint and written statements, that the joint family continued and that the mortgage was an asset of the joint family. Such being the case, the 1st plaintiff being the eldest son by himself could file the suit representing the joint family. Impleading the other members of the joint family for recovery of the joint family asset may be necessary for safeguarding the interests of the debtor to give him complete and full discharge. But the omission to implead them is not a fatal defect in the framing of the suit. It is well known that the joint family could be represented by its Kartha or manager.

Then, what about the widow, who was subsequently impleaded as the 3rd plaintiff? We have already noticed that Raghavacharyulu died in 1954 leaving behind him two sons and a widow. By virtue of the operation of the Hindu Women''s Rights to Property Act, 1937, as amended by 1938, Act, the widow becomes entitled, though as a limited estate, (sic) to the share of her husband. But that circumstance does not change the character of the joint family until a regular partition is effected. Simply because the widow has become & life estate or limited owner of the deceased coparcener''s interest in the joint family estate, she may not be a member of the coparcenary, but the joint family continues and she will continue to be a member of the joint family. Consequently the Kartha of the joint family can bring a suit to recover a joint family asset without impleading the widow as a party to the suit. As we have stated, such addition of the sharers would be desirable to give a full and complete discharge to the debtor. But the omission to implead all the heirs is not a fatal defect in the framing of the suit, so that it could be said that the failure to implead the widow as party is fatal to the present suit and consequently no decree could be passed thereon.

There is one more circumstance that should be taken into account. When her husband died in 1954, the 3rd plaintiff became a limited owner of her husband''s share. But by virtue of the operation of Section 14 of the Hindu Succession Act, 1956, she became full owner of that share. Does that circumstance bring about any change in the character of the joint family? We do not think so. Instead of being a limited owner, she became a full owner from 1956 of a share in the joint family properties, including the mortgage debt which is one of its assets. The joint family continued with her as a member. So even after the 1956 Act enlarging the widow''s interest into an absolute one, the character of the Joint family has not changed, since it is nobody''s case that there was a partition immediately thereafter, nor is there any change in the character of the mortgage which is one of the joint family assets.

We will do well to refer to a few passages in Mulla''s Hindu Law, Fourteenth Edition. Referring to the acquisition of interest by widow under the 1937 Act, the learned author states the effect of such acquisition of right in the following passage at page 94:-

The acquisition by the widow of the same interest as her deceased husband in the joint family property does not of itself disrupt the Mitakshara Joint family and the widow continues as before to be a member of the joint family. Her rights are augmented but there is no immediate severance of the joint family.

In another passage at page 95 the learned author says thus:-

On the same principle the rights and powers of the Karta of the joint family to deal with and alienate for legal necessity the coparcenary property including the widow''s interest and represent all the members of the joint family to the outside world continue as before. The position of the Karta remains unaffected as long as there is no partition and the position of the widow is somewhat analogous to that of a male coparcener in the family.

These passages fully support the view we have already expressed.

The amended plaint as per paragraph 16(a) avers that the 3rd plaintiff is also heir of the deceased mortgagee and hence she is added though 1st plaintiff alone as manager of the family can sue. This averment in the plaint shows that the plaintiffs including the widow, proceeded on the above-mentioned principle of representation of the joint family.

We have already referred to the fact that Sri Narasimhachary strongly relies on the decision of the Full Bench in P. Govinda Reddy and Others Vs. Golla Obulamma, . We are afraid that the said decision, instead of supporting the learned counsel''s contention, has expressed the view which we have stated above. That is a case which arose after the commencement of the Hindu Succession Act. The mortgagee died in the year 1960 survived by his widow, four sons and two married daughters. Since the mortgagee died after the commencement of the Act leaving behind some female heirs, the proviso to Sec. 6 of the Hindu Succession Act applied. One of the sons alone brought the suit to recover the mortgage debt. Observing that in the circumstances and because of the operation of Section 6 he could not maintain the suit in his capacity as representative of the family, the Full Bench held that it cannot be said that notwithstanding ascertainment of interest of the deceased coparcener by notional partition and devolution of the same by succession on various heirs including the female heirs by operation of the proviso to Section 6 of the Hindu Succession Act, the Karta of the Hindu Joint family can as such represent the interest devolved in specified shares on the female heirs and bring a suit for enforcement of mortgage security. The Full Bench proceeded to observe that the devolution of interest of mortgagee on his heirs being by way of succession under the rules of the Hindu Succession Act, all the heirs who got interest, whether as coparceners or otherwise, are tenants in common in relation to that interest and they as heirs jointly interested in the mortgage amount, should have brought their suit jointly or at any rate, should necessarily have been included in the frame of the suit either as plaintiffs or defendants. The suit without the inclusion of all of them is basically defective and this defect cannot be cured out of time. The fact that the plaintiff is Karta of the joint family property will not avail where the asset is not a joint family asset or cannot be treated as such or has ceased to be so by reason of the provisions of the Hindu Succession Act. We have already pointed out that in the case before us the mortgage continued to be an asset of the joint family and the two sons and the widow continued to be members of a joint family after the death of the original mortgagee. There is no operation of the proviso to Section 6 of the Hindu Succession Act in this case as the mortgagee had died two years before the Hindu Succession Act came into operation and the widow inherited his share under 1937 Act which enlarged into a Full estate by virtue of Section 14 of the Hindu Succession Act. So the aforesaid principles laid down by the Full Bench have no application to the present case and do not govern it.

Even so, some of the observations made by Chief Justice Kumarayya who spoke for the Full Bench fully reinforce and strengthen the view we have already expressed in regard to the joint family consisting of sons and widow. In paragraph 5 it is observed thus:

The case of the widow by reason of the advent of Act XVIII of 1937, as amended by Act XI of 1938, is somewhat different in that she acquires an equal share with her sons in the self-acquired property of her husband, he having died intestate. Even in coparcenary property she would step into the shoes of her husband and would be entitled to the same share as her husband would have had without disrupting the joint family status.

Then in paragraph 30 referring to the impact of Section 6 on the continuance of the Hindu Corparcenary the learned Chief Justice said;

The effect of Section 6 on the coparcenary if at all, is that in case the proviso applied to the devolution of the interest of the deceased that interest or specified share will be in pursuance of the legal fiction, out of the coparcenary property in so far as the heirs of the deceased are concerned and will be available for allotment to them. Otherwise the coparcenary will continue as ever. On the other hand if the first part of the section applied, the coparcenary property will remain intact and the interest of the deceased will continue to remain as ever in the joint Hindu family itself as though nothing had happened. It is so by reason of application of the Rule of Survivorship.

It is abundantly clear from the aforesaid passage that only when the proviso to Section 6 applies, there is a change in the character of holding the property from joint ownership to that of tenants in common. If there are only male heirs left by a Hindu, even if he died after the Hindu Succession Act came into force, the joint family continues until there is a disruption by partition or otherwise. The decision is summarised in paragraph 31, in the following manner:

Thus the position is that the coparcenary will continue as ever with the Karta managing the entire coparcenary property including the interest of the deceased coparceners if all the heirs of the deceased are the coparceners themselves. The Karta, as manager, can then effectively bring a suit for enforcement of the mortgage security representing all the heirs of the mortgagee. The other coparceners who have interest in the mortgage security are not necessary parties to such action, but they are only proper parties to the same and their non-inclusion or inclusion out of time will not be fatal to the suit. On the other hand if the proviso of Section 6 of the Act applied on account of the existence of the heirs referred to therein there will be of course no disruption of joint family status but the coparcenary property will not include the interests of the deceased coparcener by reason of succession under the Act and it will not then be available to the coparceners and heirs as coparcenary property and the Karta in relation thereto therefore cannot exercise his power as a Karta.

These observations of the Full Bench fully accord with the view we have expressed.

To conclude the discussion on this point, what emerges is that a Hindu widow inheriting her husband''s share under the Hindu Women''s Right to Property Act does not by itself disrupt the Joint family status. After such inheritance she continues to be a member of the joint family and the Karta of the joint family can represent her in all suits. The enlargement of her limited estate into a full estate by virtue of Section 14 of the Hindu Succession Act does not in any way bring about a change in the character of the joint family or the widow''s status as a member of the joint family or the Kartha''s power to represent the joint family including her. With the consequence the suit filed by the two sons as it is, is maintainable as it was brought by a person who represents the joint family of which the widow also was a member. Further to avoid any future complication in regard to the discharge or satisfaction of the debt, the widow also was impleaded as the third plaintiff. So the second defendant will now be able to get full discharge of the debt if she pays it. We are, therefore, clearly of the opinion that the frame of the suit is quite in accordance with law and there is no defect fatal or otherwise in the form of the suit. We, therefore, agree with the trial court as well as with our learned brother, though for the above stated reasons, that a decree can be properly passed on the foot of the mortgage in this suit.

The second contention is that the present appellant, who is the second defendant, is only an agent of the original mortgagor who is the first defendant. The case put forward in this behalf is that the second defendant is authorised to make payments and her duty is only to make payments and not to discharge the mortgage and so no decree can be passed against her on the foot of the mortgage. This contention must be rejected outright because the second defendant purchased and acquired the hypotheca and became the owner of the property subject to the mortgage. She is, therefore, a person liable to pay the debt and she is entitled to redeem the mortgage. She cannot be treated as an agent to make the payment. She is a person who is liable to pay the debt end redeem the mortgage.

The third contention is in regard to interest. We are in agreement with the view taken by our learned brother that compound interest at nine annas and six paise per cent. per mensem is not usurious. So, we uphold that rate of interest upto the date of the suit. Of course from the date of the suit, the learned Judge, in exercise of the powers u/s 34 of the Civil Procedure Code, awarded simple interest at 5 1/2% per annum till the date of payment. We see no reason to interfere with this either.

No other point is argued. In the result, the Letters Patent Appeal is dismissed with costs of the plaintiff-respondents 1 to 3.