Kunjanna Gurukkal and Others vs Mangalathammal

Natesan, J.—The Defendants in a suit for partition, filed by the widow of a Hindu coparcener claiming her interest in the joint family

properties, have preferred this second appeal. The deceased coparcener, Pattu Gurukkal, was the younger brother of the first Defendant. He died

on 9th July, 1959 issueless, leaving surviving himself, his widow, the Plaintiff in the suit. The brothers were undivided and the suit properties

admittedly belong to the joint family of the two brothers. Defendants 2 and 3 in suit are the undivided sons of the 1st Defendant. The 4th Defendant

in the suit is the alienee of A schedule property under a sale deed exhibit B-10, dated 15th September 1960, executed by the first Defendant along

with his sons Defendants 2 and 3 for a consideration of Rs. 1,200. Except for a sum of Rs. 352-75, cash paid, the balance of the consideration, it

is said, went in discharge of antecedent debts, some of them incurred prior to the death of Pattu Gurukkal and some of them, after his death in

connection with the obsequies. The principal question for consideration in this second appeal is whether this alienation, which the 1st Defendant

purported to make as the manager of the joint family would bind the interest of the Plaintiff, the widow of the deceased coparcener.

The Courts below find that the sale in favour of the 4th Defendant is a perfectly bona fide transaction and for proper price. As regards the debts

incurred prior to the death of Pattu Gurukkal, the finding is that they were all debts properly incurred and binding on the joint family-debts incurred

for repairs to the family house, debts incurred for medical expenses of the deceased Pattu Gurukkal, etc. The remaining debts were debts incurred,

as set out above, for funeral expenses of the deceased. Moneys were, borrowed for the same on promissory notes by the 1st Defendant and

articles purchased on credit from shops. Holding that, even though the debts might have been properly incurred, in view of the several provisions of

the Hindu Succession Act, the 1st Defendant had no authority to alienate the widow''s interest in the A schedule property, the Courts below have

directed partition and possession to the Plaintiff of a half share in the family properties inclusive of the alienated property. However, to the extent of

a half share in the debts, incurred prior to the death of Pattu Gurukkal, the Plaintiff has been directed to pay the same to the 4th Defendant, making

her share in the alienated property a charge for the amount. As the consideration for the alienation has failed in respect of a half share, the 1st

Defendant has been made liable to the 4th Defendant for half the consideration, namely, for a sum of Rs. 600 less the amount which the Plaintiff

has been directed to pay the alienee. All the Defendants join in preferring the second appeal.

Mr. K.S. Naidu for the Appellants contended that the alienation being for binding debts, should bind the widow also. It was submitted that, till

the actual partition by metes and bounds, the 1st Defendant as manager of the joint family could alienate even the widow''s share in the properties

for binding purposes. In support of his contention, reliance was placed by learned Counsel on the decisions under the Hindu Women''s Rights to

Property Act (XVIII of 1937). Emphasis was laid on the fact that, under the said Act also, a widow, subject to the proviso that she took a limited

estate, had the same interest as her husband had and that the decisions have uniformly held that the widow continued to be a member of the joint

family and the interest which she had of her husband''s was subject to all the incidents of joint family property. Only on partition, learned Counsel

contended, the manager of the joint family ceased to exercise powers over the same, and, in case the widow asked for partition, her husband''s

interest would be worked out, having regard to the circumstances obtaining in the family on the date of partition. But the decisions under Act XVIII

of 1937, are of little help in the construction of Hindu Succession Act of 1955. (Under Act XVIII of 1937, on the death of the husband the

statutory devolution on the widow, of her husband''s interest in the joint family property did not ipso facto result in separation of that interest from

the joint family property. The widow can continue to be a member of the joint family till she chose to claim partition). As pointed out in Satrughan

Isser Vs. Smt. Subujpari and Others, the widow was introduced into the coparcener by the Act, though she was not made a coparcener. The

Supreme Court says:

She is thereby introduced into the coparcenary and between the surviving coparceners of her husband and the widow so introduced, there arises

community of interest and unity of possession. But the widow does not on that account become a coparcener though invested with the same

interest which her husband had in the property she does not, acquire the right which her husband could have exercised over the interest of the other

coparceners. Because of statutory substitution of her interest in the coparcenary property in place of her husband, the right which the other

coparceners had under the Hindu Law of the Mitakshara school of taking that interest by the rule of survivorship remains suspended so long as that

estate enures. But on the death of a co-parcener there is no dissolution of the coparcenary so as to carve out a defined interest in favour of the

widow in the coparcenary property : Potti Lakshmi Perumallu Vs. Potti Krishnavenamma, ....

It is true that a widow obtaining an interest in coparcenary property by Section 3(2) does not inherit that interest but once her interest has ceased

to have the character of undivided interest in the property, it will, upon termination of her estate, devolve upon her husband''s heirs.

The provisions of the Hindu Succession Act which give certain surviving female relatives and male relatives claiming through the female relatives

rights in the interest which a deceased coparcener had in the Mitakshara coparcenary property, are entirely different and create revolutionary

changes. The proviso to Section 6 completely undermines the whole concept of Mitakshara joint family and the powers of the manager of such

family. While, under Act XVIII of 1937, till the widow asked for a partition, there was no dissolution of the coparcenary with reference to her

husband''s interest in the property and no defined interest in the coparcenary property was carved out the proviso to Section 6 brings about a

complete departure and destroys the community of interest which is necessary for the administration of joint family property as such. The proviso,

when it comes to operate, puts an end to the corporate character in which joint family property is held, the prime incident of a Mitakshara Joint

family. The first part of Section 6 of the Hindu Succession Act, of course, embodies the principle of survivorship among coparceners, and

continues, the joint family as a whole without any dismemberment. When a Hindu dies after the Act came into force, his interest in the coparcenary

property devolves, under the first part of Section 6 of the Act, by survivorship upon the surviving members of the coparcenary. But this

preservation of the joint family is broken and its incidents rendered to an extent, when the deceased coparcener leaves surviving him a female

relative specified in Class I of the Schedule, for instance, widow, daughter, mother or son of a predeceased daughter. The proviso runs thus:

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 coparcenery property shall devolve by testamentary or

intestate succession, as the case may be, under this Act and not by survivorship.

Where the proviso operates, the mode of devolution of the interest of a deceased coparcener is by succession, testamentary or intestate. Then we

have Explanation I to Section 6 defining that interest for the purpose of the section. It provides that the interest of a Hindu Mitakshara coparcener

shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately

before his death, irrespective of whether he was entitled to claim partitions or not. The interest is ascertained as at the time of death a notional

partition under the personal law is worked out and the interest quantified. Vis a vis the other members of the joint family, the heirs of the deceased

coparcener, do not hold the interest thus quantified as joint family property. The interests thus getting defined and ascertained, even if there is no

immediate partition by metes and bounds, is not subject to fluctuations of births and deaths in the erstwhile joint family. The character in which the

heirs of the deceased inter se hold the property, is defined by Section 19 of the Act which provides that, if two or more heirs succeed together to

the property of an intestate, they shall take the property as tenants-in-common and not as joint tenants. The result is that the joint family character

qua the undivided interest of the deceased coparcener which gets notionally severed, on the operation of the proviso to Section 6, is destroyed,

and that interest in the absence of a Will descends on the specified heirs of the deceased as inherited, property, and they take the interest as

tenants-in-common.

The widow in the present case takes her husband''s interest by intestate succession as an heir to her husband, and Section 14 of the Act gives

her absolute right in the interest which she takes. She takes it in her own right as full owner and not subject to the incidents of joint family property.

The Act has not stopped with placing the widow in the position of her husband giving her all the rights of her husband. It has gone further. The

manager of the erstwhile joint family of her husband can no more exercise his wait as manager over the interest which she takes. The Hindu law

manager ship is an unique institution founded on the unity of interest, the first postulate of an undivided joint family. As manager of such family, he

could represent the whole family to the outside world and the property is vested in him jointly with the other members. It is as the managing

member of a joint Hindu family that the senior coparcener gets power to alienate for value the interest of all the members in joint family property

either for family necessity or benefits ""so long as the members of a family remain undivided, as a general rule, the father of the family, if alive, or, in

his absence, the senior member of the family, is entitled, and is presumed to manage the joint family property, see Mayne''s Hindu Law, eleventh

edition, at page 566. In Mullah''s Hindu Law, fifteenth edition, at page 269 it is said:

Property belonging to a joint family is ordinarily managed by the father or other senior member for the time being of the family. The manager of

joint family is called Karta.

The head of a divided family may, out of respect, be allowed some authority by adult members of the family to manage their common property.

But the powers of such manager are not the same as the powers of the manager of an undivided joint Hindu family. Among tenants-in-common,

and that is the position of a family divided in status, neither the personal law nor the common law imposes a manager. If they choose and appoint

one among themselves as manager of their common property he will have only such powers as they choose to confer on him. The Karta of a family

in conferred powers under the personal law which a person permitted to manage the property, does not have. Now, under the Act, when the

proviso to Section 6 comes into play, the community of interest which is necessary for the functioning of a Karta disappears, and with that, the

representative character which the personal law gave the senior most male member of the family. Several knotty problems, sometimes illogical are

likely to arise now in the administration of an amalgam of old and new concepts a jurisprudence where property, though in a sense held in fee, is

subject to incidents of right by birth, obligatory expenditure and theory of pious obligation and a concept of property held absolutely.

Mr. K.S. Naidu, pleading the instant case as a hard case, would argue for an interpretation of the Hindu Succession Act that recognizes the

continuance of the manager till the heirs of the deceased coparcener claim partition. Learned Counsel would contend that the overriding effect of

the Act, provided for in Section 4 of the Act, is limited in its operation, the Act abrogating by Section 4(1)(a) only the rules of Hindu Law in

matters governed by the Act, whether they are based on any text, rule or interpretation of Hindu Law or of any custom or usage as part of the law.

Learned Counsel submitted that the Act has not dealt with the question of manager ship, and, so, Section 4(1)(a) does not stand in the way of the

manager continuing till partition by metes and bounds. It was submitted that Section 4(1)(6), which abrogated laws on the ground of inconsistency

with the provisions of the Act, in the context related only to statutory laws. But, here, it is not the contention for the Respondents that the Act by

itself abolishes the institution of Hindu Law manager in cases where the proviso to the section operates. It is the factual situation, created by the

Act, that makes ft impossible for a Karta to function. The Act divides off the share of a Hindu coparcener who dies leaving certain specified

relatives and takes that property out of the joint family. The erstwhile manager of the family ceases to have any powers over the share thus carved

out and cannot alienate it even for debts that could bind the property of the family. The question has been decided by a Division Bench of this

Court in Karuppa Gounder and Others Vs. Palaniammal and Others, and a discussion is made here in view of the interesting arguments advanced

by Counsel. In that case, the question was whether the widow and daughter of a deceased coparcener would be bound by a deed of gift executed

by the manager of the joint family after the death. It was urged that, in ascertaining the share of the deceased coparcener u/s 6 of the Hindu

Succession Act, the gift should be disregarded. It was found that the gift as such was a valid transaction made in the exercise of the powers of the

father and manager of a joint Hindu family in favour of his daughter. After referring to Explanation I to Section 6 of the Act, it was observed:

The intendment of this provision is very clear. It is that persons entitled to succeed to the interest of a deceased coparcener under this Act, shall not

be subject to the hazard of the fluctuating fortunes of the family. The Act, in so far as female heirs are concerned, enlarged the rights conferred by

the Hindu Women''s Rights to Property Act. The Act itself determines what the share of the heir shall be and it specifies it clearly to be that share

on partition, if partition had been effected immediately, before the coparcener death. Though factually no partition may have taken place, the

quantum of the share of the female heir is effectively determined by this provision and no our curtailment of that share is permissible on foot of the

existence of the joint family or of the valid exercise of the power of the father to make a gift.

It follows that the Plaintiff''s share will have to be determined without reference to the gift.

It follows from the above discussion and on the authority cited that the alienation effected by the 1st Defendant in favour of the 4th Defendant

purporting to act as manager of the family, does not bind the Plaintiff and the interest of her husband in the family property, which she inherited.

She is entitled to have her share carved out as on the date of her husband''s death, without reference to the subsequent alienation, even though the

alienation would have bound the share if the joint family had continued.

The Courts below have made the Plaintiff liable in the sum of Rs. 187-50, a half share of the debts incurred prior to the death of her husband.

She can claim her share only in the net assets of the family. No exception^ has been taken to this provision. Counsel for th�*'' Appellants claims

that the Plaintiff must contribute also for the funeral expenses of her deceased husband, the debts incurred for which have been discharged by the

alienation in question. Of the consideration of Rs. 1,200 for the alienation, a sum of Rs. 300 in cash was received by the 1st Defendant in advance,

and another sum of Rs. 52-75 was received in cash at the time of execution of the document. The balance of Rs. 847-25 went in discharge of

debts. Of these debts, the debts evidenced by exhibits B-1 and B-2 were incurred prior to the death and have been allowed. A sum of Rs. 335-

25 went in discharge of the promissory note exhibit B-1 dated 15th December 1958 and another mm of Rs. 115 in discharge of the promissory

note exhibit B-2, dated 2nd June 1959. The Courts below have noted exhibit B-2, dated 2nd June 1959. The Courts below have not allowed the

borrowings for the funeral expenses of Pattu Gurukkal. Exhibits B-4, dated 15th July 1959, is a promissory note for Rs. 150 borrowed for the

obsequies of the deceased. In discharge of that promissory note, for principal and interest, the vendee had to pay a sum of Rs. 175. Exhibit B-4 is

another promissory note executed on 18th July 1959. This promissory note was executed in discharge of an earlier promissory note exhibit B-15

for Rs. 100 executed by the deceased Pattu Gurukkal himself and for moneys borrowed for funeral expenses. In discharge of exhibit B-4, the

vendee paid Rs. 223. Thus, out of the consideration for the alienation, a sum of Rs. 847-25 went in discharge of debts incurred prior to the death

and debts incurred for the funeral expenses. Learned Counsel for the Appellants contends that, in respect of the funeral expenses incurred, the first

Defendant should not be made wholly responsible for the same. It is submitted that, on equitable principles and u/s 70 of the Act, relief could be

granted. I am inclined to agree with the contention of the Appellants to an extent. Learned Counsel referred to a decision of this Court in Piramu

Ammal and Another Vs. Serunatha Ammal and Another, In that case, a foster son of a testator, in whose favour certain bequests were made and

who continued to live with the testator''s wife discharged certain encumbrances on-some properties other than those bequeathed'' to^ him. He was

not required to discharge those encumbrances by the Will. After the death of the foster son, there was a contest between the widows of the

testator and the legal representatives of the foster son. Considering the question whether the widows were liable to pay the legal representatives of

the foster son the amounts the foster son paid indischarge of the encumbrances, it was observed:

If Nallakannu Pillai (foster son) was a mere volunteer, no doubt he would not be entitled to be paid back the amount which he paid for the

discharge of Exhibit III. In this case it cannot be said that Nallakannu Pillai discharged the debt (Exhibit III) gratuitously or as a volunteer. The

Plaintiffs and Achia Pillai lived together at the time and he discharged the debt on the plaint properties as he was living with the Plaintiffs. There was

no direction in the Will that Nallakannu Pillai should discharge all the encumbrances on the property. That being so, it cannot be said that in the

circumstances, Nallakannu Pillai was a mere volunteer and that his estate is not entitled to be paid back the amount which he spent in removing the

encumbrances on the plaint property. The 1st Defendant will be entitled to get from the Plaintiffs the amount paid towards the discharge of Exhibit

III.

Section 70 of the Contract Act reads:

Where a person lawfully does anything for another person, delivers anything to him, not intending, to do so gratuitously, and such other person

enjoys the benefit thereof the latter is bound to make compensation to the former in respect of or to restore, the thing so done or delivered.

The juridical basis for the obligation u/s 70 of the Contact Act is founded not upon any contract or tort, but of a third principle of law, quasi

contract or restitution. It prevents unjust enrichment. To invoke Section 70 of the Act, it must be shown that the person acted lawfully, that he did

not intend to act gratuitously and that the other person enjoyed the benefit. There must be no officious imposition by the person claiming restitution.

The Courts below find that the funeral expenses were duly and properly incurred. There is no case that the expenditure is excessive, nor is there a

finding that there was officious interference in the matter by the first Defendant. There is no doubt that the Plaintiff was bound to spend necessary

amounts for the funeral expenses. It is admitted that the last rites of the deceased, for which borrowings were made, were done at Thirunellikaval

where the family resided. The last rites were performed by the youngest son of the first Defendant. It -may be that the first Defendant had not in

law the authority of a Karta to incur expenditure on the credit of the share of the deceased in the family property. He might have erroneously

believed he had the authority. But the case clearly attracts Section 70 of the Contract Act. Having regard to the habits of life, custom and practice

in the community-one cannot expect the first Defendant at that time immediately after the bereavement, to approach the Plaintiff for the requisite

funds to perform the obsequies or ask for specific authority to incur expenditure on her behalf. The performance of the obsequies of a Hindu is

considered essential for the salvation of his soul and the first Defendant as the nearest agnate and elder brother of the-deceased would not have

been expected to allow the widow to shift for herself. The personal law considers these ceremonies so essential that even a widow with a woman''s

estate, could encumber property for incurring expenses in connection with the obsequies of her husband and the periodical performance of the rites

prescribed by Sastras. When the first Defendant arranged for the obsequies and funeral rites of the husband, the widow participating to the extent

custom permitted and the Sastras required, one may naturally presume that he had her implied or tacit consent to incur the necessary expenses.

The Plaintiff had the full benefit of it.

Though the first Defendant would now contend that having regard to the attitude adopted by the Plaintiff, she has to bear the entirety of the

funeral expenses properly incurred, when he incurred the funeral expenses must have proceeded on the assumption that the expenses, could be

debited in the common account of the parties. He can, therefore, claim only contributions for a half share in the funeral expenses incurred. He

appears to have proceeded on the basis, not tenable in law, that the joint family as such continued, and that he could on the credit of the entirety of

the family properties, borrow for necessity. If Section 70 of the Contract Act is to be applied, while he did not incur the funeral expenses

gratuitously, it must be held the he was conscious that he was under an obligation to incur the expenses on the credit of the common property. In

the circumstances, the 1st Defendant could properly claim one half of the amount of Rs. 847-25, that is, Rs. 423-62 which is made up of prior

debts and debts contracted for the funeral rites. Instead o directing the Plaintiff to contribute to the 1st Defendant this amount of Rs. 423-62, the

first Defendant being directed to re-pay the alienee Rs. 600, one half of the consideration for the alienation, the Plaintiff can properly be directed to

pay the 4th Defendant the sum of Rs. 423-62 directly, the said amount being a charge on her half share in the plaint A schedule property. It is the

4th Defendant that in fact paid off the creditors. In the circumstances, the 1st Defendant will have to pay the 4th Defendant only a sum of Rs. 176-

The trial Court''s decree will have to be modified accordingly, the Plaintiff having to pay the 4th Defendant Rs. 423-62 and the 1st Defendant

having to pay the 4th Defendant only Rs. 176-38.

It was represented for the Appellants that, besides the discharge of debts, expenses had also been incurred by the 1st Defendant for the

purchase of grocery and clothes in connection with the funeral ceremonies of the Plaintiff''s husband. Contribution in respect of these was claimed

from the Plaintiff. The records do not show that there was any borrowing for the aforesaid expenses. It may well be that the expenses were no

from out of common funds available.

In the result, subject to the modification of the trial Court''s decree as stated above, the second appeal is dismissed. There will be no order as

to costs. No leave.