P. Kanniappa Mudaliar vs K. Selvaraj and 2 others

Venugopal, J.—The second defendant is the appellant before this Court. The plaintiffs and the first defendant are the respondents. The plaintiffs are the sons of the first defendant. The second defendant is the alienee of the suit item No. 1 property from the first defendant. The plaintiffs'' case is that they are the sons of the first defendant and they constituted a joint Hindu family and the suit property is the joint family property and the second defendant is not a bona fide purchaser and the said sale by the first defendant will not bind their 2/3rd share in the suit property. The first defendant remained ex parte. The case of the second defendant is that the suit property is not the joint family property and it is the separate property of the first defendant and he is a bona fide purchaser for value and has paid the full consideration for the purchase. The trial court held that the first defendant got the property in a partition under Ex.A1 which shows that some of the properties were thrown into the common stock and made available for partition between the first defendant and his step brothers and the suit property, therefore, constituted joint family property. The trial court further held that the defendants 1 and 2 colluded to deprive the plaintiffs of their shares and only three debts, namely, the two mortgage debts and the payment of electricity charges are real and to that extent, the plaintiffs were bound to discharge these debts. On these findings, the trial court granted a preliminary decree for partition and separate possession of plaintiff''s 2/3rd share with the direction that the plaintiffs should discharge the 2/3rd share in these three debts. Against this decree and judgment of the trial court, the second defendant has preferred this present appeal. Learned counsel for the appellant second defendant contended that under Ex.A1 there was mixing and pooling of properties received under three settlement deeds and other properties by the first defendant, his two step brothers , Venkatesa Mudaliar and Kandasami and their father Manicka Mudaliar along with Pakkiammal, the sister of the said Manicka Mudaliar and the property received by the first defendant under such a partition deed cannot be joint family property, but would only be the separate property of the first defendant which he is competent to alienate to the second defendant under Ex.B1.

The question for consideration is whether the plaint A schedule properties which the first defendant received under the partition deed Ex.A1 is the joint family properties or the separate properties of the first defendant. In paragraph 223 of the Principles of Hindu Law by Mulla, 14th Edition, it is stated all property inherited by a male Hindu from his father, father''s father or father''s father''s father is ancestral property. In the decision reported in AIR 1937 233 (Privy Council) 1 it has been held that the ancestral estate, in which, under the Hindu Law a son acquires jointly with his father an interest by birth, must be confined to the property descending to the father from his male ancestor in the male line. The suit property forms part of plaint A schedule. It is not inherited by the plaintiffs from their father since inheritance has yet to take place. In paragraph 223(4) of the Principles of Hindu Law by Mullah, 14th Edition, it is stated "the share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issue". There is no evidence to show that the properties dealt with under Ex.A1 are the ancestral properties of first defendant''s father. In the absence of evidence to show that the ancestral property was the subject matter of partition under Ex.A1, it cannot be stated that what the first defendant got under Ex.A1 is the joint family property. It is sought to be contended by the respondents that under Ex.A1, there is mixing of all the properties and a division effected and such a mixing and pooling impressed the properties dealt with under Ex.A1 the character of the joint family properties The parties to Ex.A1 were the first defendant, his two step brothers his step mother and paternal aunt Pakkiammal. It is seen from Ex.A1 that two female members also along with other coparceners have mixed and pooled their properties and effected a division. From the decision of the Privy Council reported in AIR 1932 216 (Privy Council) and quoted with approval and subsequently followed in the decision of the Supreme Court reported in Pushpa Devi Vs. Commissioner of Income Tax, New Delhi, , it is made clear that only a coparcener can throw his separate property into hotchpot and impress it with the character of joint family property. If the female members along with a coparcener allow their properties to be thrown into the common stock of other properties belonging to the coparcener, there is no blending as understood in the Hindu Law, nor did the properties acquire the character of joint family property. So under Ex.A1, there is no blending and the properties mixed and pooled together, cannot acquire the character of joint family properties. It, therefore, follows that what the first defendant received under Ex.A1, is not joint family property and hence, he is competent to alienate the same to the second defendant. In this view, the sale by the first defendant in favour of the second defendant is upheld and the sale is binding on the plaintiffs. The other question whether the sale by the first defendant in favour of the second defendant is for binding purpose and binding on the plaintiff will not survive for consideration in view of the above finding that the suit property is the separate property of the first defendant. In the result, the appeal is allowed and the judgment and decree of the trial court are set aside and the suit so far as it relates to item 1 of plaint A schedule stands dismissed. In other respects, the judgment and decree of the trial court stand confirmed. Parties will bear their own costs, throughout.