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Judgment
Prabha Sridevan, J.—The suit is filed by the appellant''s son for partition of his half share in item Nos.1 to 10 of the suit properties and in
favour of the appellant''s wife, the first respondent herein for maintenance and other reliefs. The appellant is aggrieved on two grounds. According
to him, the first respondent is not entitled to any maintenance since she has left the marital home without any just and reasonable cause demanding
that certain properties shall be settled on her and as regards, the claim for partition it is his case that not all the suit properties are liable for partition;
some of the items shall be excluded; some of the items are self-acquired.
The written statement of the appellant admits that these properties are all ancestral. The following extract from the written statement is relevant.
The first plaintiff did not come to her brother''s house in November, 1982. This defendant did not meet first plaintiff. This defendant did not
demand that first plaintiff should hand over the jewels. This defendant did not hit the first plaintiff with a stick. This defendant did not cause cigarette
burn injury on 1st plaintiff''s face. All the allegations in paragraph IV of the plaint are all false and are hereby specifically denies.
From the additional written statement filed on 16-06-1986 where he has stated that only 1 acre and 18 cents of the suit property should be
considered as ancestral property and the remaining has to be considered as self-acquired.
There was one Kannusamy whose son is the appellant herein. Kannusamy left behind several properties and they devolved jointly on the
appellant and his brother, Ramalingam as ancestral properties. On 30-12-1977, there was a registered partition and ever since, the appellant and
his brother are in possession and enjoyment of the properties that were separately allotted to them. It is to be noted that in this partition deed dated
30-12-1977, the appellant was allotted a greater share than his brother. Some extracts of Ex-A12 of the partition deed may be relevant to learn
the reason for this unequal allotment.
@,jdoapy; fz;l brhj;Jf;fs; aht[k; ek; ,UtUf;Fk; bghJtpy; ghj;jpag;gl;l bghJ FLk;g brhj;Jf;fs;.@
Therefore, there is no dispute that this properties are joint family properties. It further states that the first party, namely the appellant shall discharge
the various debts and the second party, namely the brother is not bound to discharge the debts. The recitals are as follows:
@1k; egh; ,Jtiu bgw;Ws;s gpuhkp!hp nehl; fld;fs; Tl;Lwt[ r'';ff; fld;fs; mh;gd; ng'';f; fld;fs; Mfpa rfykhd fld;fisa[k; 1k; egnu jd; brhe;j bghJ
bghWg;gpYk; nkw;goahd A Schedule brhj;Jf;fis bfhz;Lk; igry; bra;Jf;bfhs;s ntz;oaJ/ nkw;go fld;fspy; 2k; egUf;F ahbjhU bghWg;g[k; fpilahJ/
nkw;go fld;fis 1k; bghWg;gpy; bfhLf;fntz;o tif bra;ag;gl;Ls;sjhy; mjd; epkpj;jk; 1k; egh; mila[k; A Schedule mjpfkhf epyk; xJf;fg;gl;Ls;sJ/ ,dpnky;
ghfk; bra;Jbfhs;s ntz;oa ntW ahbjhU brhj;Jk; fpilahJ/@
The learned counsel for the appellant argued that the appellant had discharged all the debts without any detriment to the properties allotted to
him under Ex-A12 and out of his own earnings. Therefore, the excess area that has been allotted to him in this partition deed for the purpose of
discharging debts should be treated as his self-acquired. The submission of the learned counsel is that if he had utilized the extra lands that were
allotted to him for the purpose of discharge of debts, then, those properties would not be available to the second respondent herein for partition. It
is because instead, he had discharged the debts out of his own self-acquired income and these properties are still available and intact and therefore,
they should be deemed to be his self-acquired property. It is also submitted that when Kannusamy Nadar died, the second respondent was not
born and hence, he is not entitled to claim a share in the property that had already devolved the party, the father.
The learned counsel for the respondent on the other hand would submit that the duty to discharge the debt was a pious obligation and it is not as
if the appellant had taken upon himself an obligation which was not bound to perform. The most that the appellant can claim is that since he had
discharged the debts out of his own funds the respondent herein is bound to take a share in the liability to repay the debts also.
The learned counsel relied on the judgment reported in Kasirajan Vs. Ramasamy Nainar (1992 LW 89). The learned counsel also submitted
that there was absolutely no merit in the appellant''s case that the first respondent had left the marital home out of her own accord. He would refer
to the wound certificate Ex-A16 as well as the evidence of P.W.2 who is a Doctor, who had stated that the wounds found on the body of the first
respondent were caused by cigarette butt. Not only he had treated her with physical cruelty, it was also on record that he was living in adultery
with one woman called Arun. Exhibits had been marked like electoral rolls which would show that this Arun was living in the same premises as the
appellant and the first respondent, and the electoral rolls also describes her as the wife of Ramalingam.
The learned counsel submitted that the Trial Court had rightly come to the conclusion that it was the appellant who had made it impossible to the
first respondent to remain in the marital home and therefore, he is bound to pay maintenance. The learned counsel also submitted that the appellant
is not entitled to take advantage of his own wrong and having driven the first respondent out of the marital home by his own conduct cannot now
be heard to say that since she went of her own accord she is not entitled to claim maintenance. The Court should see the circumstances which
compelled the first respondent to leave the marital home.
The following decisions were relied on for the purpose of supporting the respective cases.
(a) C.N. Arunachala Mudaliar Vs. C.A. Muruganatha Mudaliar and Another,
(b) Additional Commissioner of Income Tax Vs. P.L. Karuppan Chettiar 1991 LW 529
(c) A.C.A. Ganapathi Mudaliar and Others Vs. Arumugathammal (Died) and Another,
(d) Vasudeva Naicker, (Died) and Others Vs. T.A. Madhavan and Others,
(e) P. Periasami (Dead) by Lrs. Vs. P. Periathambi and Others,
(f) K. Sadagopan Vs. K. Yamunan 2002 II CTC 641
(g) State Bank of India Vs. Ghamandi Ram (Dead) through Gurbax Rai,
(h)1992 LW 89(cited supra)
The question of maintenance:
It is to be seen whether the first respondent left the house out of her own accord, or whether she was forced to leave. One line from the evidence
was extracted by the learned counsel for the appellant to show that she had stated that she left for her father''s house in 1971 itself, stating that
unless the settlement deed is executed in her favour she would not stay in the marital home. This does not appear to be correct. Because even as
per the evidence D.W.1, the appellant herein,the first appellant was living with him until 1978 and the daughter, who is the third appellant herein
was born in 1976. The evidence on the side of the appellant is very unclear as to when the first respondent actually went out of the marital house.
Ex-A13 is the notice issued by the appellant and it is dated 15-12-1982. It is the categoric statement of P.W.1, the suit notice was issued while
she was staying with him. If so, the statement in P.W.1''s evidence that she left for her mother''s house because he did not settle properties on her
in 1971 cannot be correct and in any event one stray sentence cannot be extracted when not only her evidence but also the evidence of D.W.1,
the appellant and D.W.3, the appellant''s brother are to the contrary. Therefore, the case that she left in 1971 merely because he refused to
execute the settlement deed has been proved false. It must be seen now whether her leaving the marital home is without any just and reasonable
cause. For this purpose the respondent has marked Ex-A16 and has examined P.W.2. P.W.2, is a Government Doctor who has no reason to
speak falsehood. He has stated that on 02-12-1982, the respondent came to him and he found the burn marks on her feet and on her face and it
could have been caused by a cigarette butt. He has also said that he has issued Ex-A16. Ex-A16 speaks clearly of the nature of the injury caused
to the first respondent. The first respondent''s case is that on that date when she and the appellant met he beat her and he also burnt her with the
cigarette butt. So there is oral and documentary evidence of physical cruelty. In addition she has also marked some exhibits to show one Arun who
is the teacher was living with him. 02-12-1982, is the date of the injury and 15-12-1982 is Ex-A13, the notice. This notice stated clearly the nature
of the conduct of the appellant. It refers to his wayward life, his addiction to drinks and his associating himself with a concubine by name Arun and
that he had kicked and beat not only the first respondent but also the children and in the last week of Chithirai he had driven her out of the house
and she has stated that on the second of this month when the appellant came to the respondent''s house and asked her to handover the jewels she
refused and therefore, he pressed the smoking cigarette butt on her face and beat her heavily. No reply has been given to this. It was open to the
appellant to state at this stage that since he had already settled properties on her under Ex-B1 he was not liable to give her any maintenance. If the
incident on 2nd December is false he ought to have denied at this stage. But he chooses to stay quiet. This is not to say that the allegations are
proved merely because the no reply was given to Ex-A13. In the written statement no mention has been made of the suit notice, though it has been
received by the appellant and the acknowledgment has been marked as Ex-A14. However, for the first time in the additional written statement he
has said that after receiving the notice he had requested the appellants to Panchayat to avoid litigation and the respondent had instigated the
appellant not to reply to the notice and so he whole-heartedly believed her assurance and that is why he did not give the reply notice. No date is
given of the Panchayat and therefore, it is not possible for the Court to come to the conclusion that the case regarding the Panchayat is true. When
the allegations regarding physical cruelty as well as the illicit relationship with Arun has not been satisfactorily rebutted by the appellant, the
appellant''s duty to pay maintenance to his wife remains undischarged. The other defence to resist the payment of maintenance is that he had settled
the property under Ex-B1 settlement deed. The original has not been marked. According to the appellant, the original is with the first respondent.
But P.W.1, has not been cross-examined whether she is in possession of original, Ex-B1. Therefore, it is difficult to believe that the original of Ex-
B1 was given to the first respondent. The recitals of this document would show that item Nos.6 to 8 of the suit properties were settled on the first
respondent without any right of alienation, without any right to create mortgage or any other encumbrance and that after her death they should go
to any child that will be born to her and the appellant and in case there are no children it will revert back to him and his heirs. Though, of course,
there is a recital that possession was handed over to the first respondent on that date, it is also stated that the patta will continue to stand in his
name. There must be something to show that possession was given to the settlee and that she was enjoying the said properties. Absolutely there is
no evidence as to the same. Admittedly the patta continues to be in the appellant''s name. Even the title deeds or the original of Ex-B1 has not been
proved to be handed over to the first respondent. In these circumstances, it is very difficult to believe that the settlement deed was intended to take
effect or that it came into force. The first respondent as P.W.1 has categorically denied that possession of these suit properties was ever given to
her. Therefore, in the absence of any evidence to show that properties were settled on P.W.1 under the original, this defence also fails. Therefore,
the decree for maintenance granted by the Trial Court stands confirmed.
The right to claim partition:
Under Ex-A2, the partition deed between the appellant and his brother about 3.28 acres were given to the appellant. The appellant''s case is that
he got a larger share only to discharge certain debts and when he had discharged the debts out of his own income leaving the properties unscathed;
the properties so saved by clearing the debts out of his own income should be deemed to be self-acquired. Therefore, item Nos.1 to 4 should be
removed from the claim for partition. Though this is an interesting proposition it is difficult to accept this for as seen from the decisions cited above,
the liability to pay the family debts is a pious obligation.
In 1992 I LW 89(cited supra) this Court held that the liability of payment of debt imposed on the son is based on the Doctrine of pious
obligation. Therefore, the appellant cannot claim any special equities in his favour merely on the fact that he had discharged his father''s debt.
Further in the same decision, the learned Judge had held that any partition of the family property without making a provision for payment of debt
due by the family would not prevent the creditor from proceeding against the family property. Therefore, the fact that these properties were set
apart for payment of debt would only mean that any creditor proceeding against the debtor or his sons would not be prevented from proceeding
against the other family properties. To protect them from a creditor''s gasp some properties are set apart for discharge of the debts. On that
account the appellant cannot claim that these properties should be treated as self acquired properties.
In A.C.A. Ganapathi Mudaliar and Others Vs. Arumugathammal (Died) and Another, was a case where the Doctrine of pious obligation was
dealt with and the learned Judge had referred to the various authoritative texts on Hindu Law and to show that a creditor may enforce payment of
the personal debt of the father, not being illegal or immoral, by attachment of sale of the entire interest of the father and sons in the family property
and the sons are liable to discharge such debts.
State Bank of India Vs. Ghamandi Ram (Dead) through Gurbax Rai, was relied on where the Supreme Court dealt with the incidents of co-
parcenership under the Mitakshara law are: first, the lineal male descendants of a person up to the third generation, acquire on birth ownership in
the ancestral properties of such person, secondly, that such descendants can at any time work out their rights by asking for partition. In this case as
has been observed already there has been admission that the suit properties are ancestral and therefore, the respondent is entitled to bring this suit
and P. Periasami (Dead) by Lrs. Vs. P. Periathambi and Others, was relied on by the learned counsel for the appellant to show that the properties
acquired by the sons from his father''s who acquired them with his funds cannot be treated as joint Hindu family property and therefore, according
to the learned counsel the after born grandson cannot claim partition. But as stated earlier all these decisions will have no application because it has
been admitted by the appellant that it is the ancestral property. In Vasudeva Naicker, (Died) and Others Vs. T.A. Madhavan and Others, it was
held that a joint family property is liable for legitimate debts in the absence of anything to show that the debts for which those properties were
allotted were not legitimate debts and the son is liable to discharge the same and in this case the appellant had discharged the same but that would
not change the character of the ancestral property into a self-acquired property. Mulla''s Hindu Law, 17th Edition was referred to and in particular,
the following passages were relied on.
�216. Undivided coparcenary interest - The Supreme Court has summarised the position and observed that the coparcenary property is held in
collective ownership by all the coparceners in a quasi-corporate capacity. The incidents of coparcenary are, first, the lineal male descendants of a
person upto the third generation, acquire on birth ownership in the ancestral properties of such person. Secondly, that such descendants can at any
time work out their work out their rights by asking for partition; thirdly, that till partition each member has got ownership extending over the entire
property conjointly with the rest; fourthly, that as a result of such co-ownership the possession and enjoyment of the properties is common; fifthly,
that no alienation of the property is possible unless it is for necessity, without the concurrence of the coparceners, and sixthly, that the interest of a
deceased member passes on his death to the surviving coparceners.
�223 Ancestral Property - All property inherited by a male Hindu from his father, father''s father or father''s father''s father, is ancestral property.
(a) A inherits certain property from his father. A has a son B. The property so inherited is ancestral in A''s hands, and it must be held by him in
coparcenary with B. B can enforce partition of it against A, in which event he will be entitled to one-half. If B continues joint with his father, the
whole property will pass to him by survivorship on the father''s death.
C.N. Arunachala Mudaliar Vs. C.A. Muruganatha Mudaliar and Another, para No.12 was referred to and it is extracted as follows:
So far as the first ground is concerned, the foundation of the doctrine of equal ownership of father and son in ancestral property is the well known
text of Yagnavalkya: vide Yagnavalkya Book 2, 129 which says:
The ownership of father and son is co-equal in the acquisitions of the grandfather, whether land, corody or chattel.
It is to be noted that Vijnaneswar invokes this passage in Chap.I Sec. 5 of his work, where he deals with the division of grandfather''s wealth
amongst his grandsons. The grandsons, it is said, have a right by birth in the grandfather''s estate equally with the sons and consequently are entitled
to shares on partition though their shares would be determined ''per stirpes'' and not ''per capita''.
This discussion has absolutely no bearing on the present question. It is undoubtedly true that according to Mitakshara, the son has a right by birth
both in his father''s and grandfather''s estate, but as has been pointed out before, a distinction is made in this respect by Mitakshara itself. In the
ancestral or grandfather''s property in the hands of the father, the son has equal rights with his father; while in the self-acquired property of the
father, his rights are unequal by reason of the father having an independent power over or predominant interest in the same: vide Mayne''s Hindu
Law, 11th Edition, page 336. It is obvious, however, that the son can assert this equal right with the father only when the grandfather''s property
has devolved upon his father and has become ancestral property in his hands. The property of the grandfather can normally vest in the father as
ancestral property if and when the father inherits such property on the death of the grandfather or receives it, by partition, made by the grandfather
himself during his life-time. On both these occasions the grandfather''s property comes to the father by virtue of the latter''s legal right as a son or
descendant of the former and consequently it becomes ancestral property in his hands.
In these circumstances, I see no reason to interfere with the findings of the Trial Court. A civil miscellaneous petition was filed for accepting as
additional evidence a release deed registered as document No.13/97 under which the respondent wife is supposed to have released her rights in
the suit property for valuable consideration. The learned counsel for the respondent would submit that such a document was never executed by her
and in any event no amount was given to her by the appellant.
According to the learned counsel for the appellant, however, he was forced to bring about this document. This document cannot be received
as evidence without examining the witness. Therefore, the civil miscellaneous petitions are dismissed. In any event if and when the respondent
chooses to execute the decree for maintenance it is open to the appellant to take such defence as are available to him including that of discharge.
And the dismissal of the miscellaneous petitions shall not stand in his way.
In Additional Commissioner of Income Tax, Madras Vs. P.L. Karuppan Chettiar, Karur 1991 L.W. 529 (FB) was relied on by the learned
counsel for the appellant to show that this property is a separate property. There the Full Bench considered the effect of S.8 of the Hindu
Succession Act and held that upon the death of P, a Hindu, after the Act, his son will inherit the property (whether it was ancestral or not) to the
exclusion of the grandson.
In this case, Ex-B2 shows that the appellant had taken part in this partition representing his deceased father''s branch. This is admitted by the
learned counsel for the appellant. The pleadings are also to the effect that the properties are ancestral; and not that S.8 would apply; and the
appellant would take it excluding his son. In fact the objection of the appellant was restricted only to item Nos.1 to 4 as ground No.23 in the
Memo of grounds would show. So on the facts of this case that decision will not apply.