Thirumalaiswami Goundar vs Parvathi Ammal (died) and Others

T. Ramaprasada Rao, J.—The fifth defendant in O.S. No. 299 of 1967 on the file of the Subordinate Judge of Coimbatore is the appellant.

One Thangamuthu Gounder died possessed of the suit properties, he having secured the same under a partition in his family in or about July, 1932

as seen from Exhibit A-3 dated 22nd July, 1932. He left behind him his mother (the first plaintiff), his eldest daughter (the second plaintiff), his

widow (the first defendant) and his minor daughter (the second defendant) as his surviving heirs. He died in 1966 and, therefore, succession to his

estate has to be determined with reference to the provisions of the Hindu Succession Act. It is not in dispute, therefore, that the two plaintiffs on

the one hand and defendants 1 and 2 on the other would each he entitled to a moiety in the properties of Thangamuthu Gounder. In those

circumstances the plaintiffs instituted the present action for partition of the suit properties which admittedly belonged to Thangamuthu Gounder, into

two equal shares and for allotment of one such share to them and for the usual rendition of accounts by the first defendant after the death of

Thangamuthu Gounder and for costs.

While Thangamuthu Gounder was alive, he borrowed monies under a deed of mortgage Exhibit B-5 dated 7th August, 1952 executed in favour

of the third defendant. Again, he borrowed monies on a promissory note from the fourth defendant, which ended in a decree as against him, when

he was alive in O.S. No. 38 of 1363 on the file of the District Munsif''s Court, Udumalpet. The widow of Thangamuthu Gounder viz., the first

defendant after having been apprised of an attachment of the properties in execution of the money decree as above obtained by the fourth

defendant and in order to discharge the said decree debt as also the mortgage debt which was subsisting on the date of her husband''s death, she

sold 4 acres of the suit properties for a sum of Rs. 8,000. This sale was under Exhibit B-4 dated 26th May, 1967. The consideration of this sale

deed as per the recitals therein consists of the following : A sum of about Rs. 3,270 paid by the fifth defendant, who purchased the properties

under Exhibit B-4, to the third defendant, who was the mortgagee as per Exhibit B-5, as also a sum of about Rs. 1,312.21 which was paid in

discharge of the decree debt obtained by the fourth defendant against Thangamuthu Gounder and further sums of Rs. 2,120 and Rs. 1,100 to

discharge debts contracted by the first defendant herself after her husband''s death under promissory notes Exhibits B-1 and B-2 respectively

dated 15th May, 1966 and 20th June, 1966 in all, and after discharging the aforesaid debts as recited in the instrument of sale Exhibit B-4, the first

defendant received a sum of Rs. 187 as cash consideration for the sale of 4 acres of the family properties under Exhibit B-4. When the plaintiffs

came to Court the above alienatior was already effected. They questioned the above alienation as not binding on them. Their case is that the sale

itself was a fraudulent one and that they were prepared to pay the admitted debts left by Thangamuthu Gounder and could not be made

responsible for any other borrowings made by the first defendant.

In the written statement filed by defendants 1 and 2 their case is that the first defendant sold 4 acres of the family properties not only to

discharge her husband''s debt, but also to incur the necessary expenses in connection with the marriage of the second plaintiff and, therefore, the

debt contracted by her in such a situation is binding on the other family members of the family. She would also urge that she had taken the

precaution of selling only such portion of the family properties so as to discharge the antecedent debt and to borrow monies for necessity and,

therefore, the plaintiffs are bound by the said alienation and that the remaining land only could be susceptible to partition.

The fifth defendant supports the first defendant''s case and says that as the wife of Thangamuthu Gounder and as the manager of the family, she

was in possession of the family properties and the sale effected by her so as to pay off earlier debts and to borrow for necessity is binding on the

other members as well. He would claim to be a bona fide purchaser for value and requested the Court to sustain the sale in his favour. We may at

once state that it is not in dispute that the fifth defendant as alienee has paid off the mortgage debt under Exhibit B-5 and also the decree debt in

O.S. No. 38 of 1963 on the file of the District Munsif''s Court, Udumalpet which, as already stated, were debts contracted by Thangamuthu

Gounder when he was alive. On the above pleadings the following issues were framed:

(1) Whether the sale deed and lease deed dated 26th May, 1967 are true and binding on the plaintiffs?

(2) Whether the 5th defendant is a bona fide purchaser for value?

(3) Whether the 5th defendant has acquired any right or equity in respect of the suit properties?

(4) Whether the 5th defendant is entitled to a charge for the sums paid by him on account of the earlier mortgages?

(5) Whether item No. 3 house is the property of the late Thangamuthu and is available for partition?

(6) Whether item No. 2 house cannot be partitioned?

The learned Judge found that the first defendant had not the requisite authority under the provisions of the Hindu Succession Act of 1956 to

effect a sale of a portion of the family properties and that that could not be done under the guise of necessity as well, since she could not claim the

status of a manager of a Hindu undivided family, who could only effect such alienation in case of necessity and for the benefit of the family. In those

circumstances, the learned Judge would not agree with defendants 1, 2 and 5 that the alienation under Exhibit B-4 was a binding one. He gave a

preliminary decree for partition of the suit properties excepting item No. 3 in the plaint schedule and directed the first defendant to render an

account of the income from the family properties in her possession after the death of Thangamuthu Gounder. The fifth defendant, who is mainly

affected, has filed this appeal as against the judgment and decree of the Court below.

There is no dispute before us about the disallowance of item No. 3 of the scheduled properties. Mr. T.R. Ramachandran, the Learned Counsel

for the appellant lays great stress on the fact that the lower Court did not bear in mind the fact that a major portion of the consideration in the sale

effected by the first defendant under Exhibit B-4 went for the discharge of debts contracted by Thangamuthu Gounder himself and did not even,

make a provision for the payment of such debts from the estate. As we said already, the discharge of such debts from and out of such

consideration which flows from Exhibit B-4 is not disputed before us.

The second contention of Mr. T.R. Ramachandran is based on a well-known rule of adjustment of equities as between the members of a joint

family in case where the alienee comes into the picture by purchase of an undivided share of the properties belonging to the family from one or the

other members of such a family. He would, therefore, contend that as the lower Court did not find that the alienation Was fraudulent as contended

by the plaintiffs, he ought to have suggested or made certain observations regarding the adjustment of equities as between the alienee of the family

properties and the rest of the members of the family and he also seeks for a binding finding about the major portion of the consideration that

passed under Exhibit B-4 being for discharge of the debts contracted by the ancestor of the family himself. The Learned Counsel for the

respondents is not in a position to contend to the contrary for the simple reason that the propositions for which Mr. T.R. Ramachandran was

arguing are so very well laid and well founded. But the respondents'' counsel contends that at this stage this Court need not make any observation

regarding the adjudgment of equities and that can be left over for the lower Court to equalise or equitably adjust the shares at or about the time

when the final decree is passed.

All the four members, who could succeed to the properties of Thangamuthu Gounder, are female members. In such a situation the position is

clear that such female members, who succeed to the ancestor, take, no doubt definite shares in the estate under the Hindu Succession Act; but the

interest of each in it is as a tenant in common. This concept of tenancy in common has a peculiar significance. Though it entitles a sharer to claim an

independent share in the joint family properties, yet she cannot act for other members of the family and assume the garb of joint family manager or

an eldest member of the family so as to alienate or part with such proprties for the benefit of one or such other members. The principle that a male

member could in such circumstances even though a younger member can act for others in times of emergency, necessity and benefit and alienate a

portion of the property and plead, when it is contested, that such an alienation was for the benefit of the family or for necessity this defence is

avilable to such a male member. But in a case where the ancestor leaves only female members and as such female members share the properties

only as tenants in common, each cannot project a right in herself and deal with the other''s share, even on the foot of necessity. This was the Well

accepted canon even before the passing of the Hindu Succession Act. This principle Was so recognised in V.M.N. Radha Ammal Vs. The

Commissioner of Income Tax, . This decision has been approved by the Supreme Court in Commissioner of Income Tax, Madhya Pradesh,

Nagpur and Bhandara Vs. Seth Govindram Sugar Mills, . The Supreme Court has held that under Hindu Law co-parcenership is a necessary

qualification for the managership of a joint Hindu family, that a widow is not a coparcener, she has no legal qualifications to become the manager of

a joint Hindu family and that a widow of a coparcener cannot, therefore, be a karta of the joint Hindu family consisting of three widows and two

minors. After the passing of the Hindu Succession Act the position has become more clear, since the family members, who are the sole surviving

members of the joint family, take their respective interests in the joint family properties as tenants in common. Section 19(b) of the Hindu

Succession Act, 1956, says 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. Section 19(a) of the Act is rot necessary for the purpose of our discussion. Therefore, the first defendant in the

instant case did not acquire the status of a manager, which status alone would entitle her to deal with joint family properties and in particular deal

with not only her share in it, but also the shares of her daughters. Prima facie, therefore, the first defendant did not have the requisite authority to

sell the 4 acres of joint family properties under Exhibit B-4 to the fifth defendant.

But the additional circumstance in this case outweighs the general principles referred to above and compels us to adopt the equitable rule that

the interest of an alienee in joint family properties should as far as possible, be safeguarded and the equities inter se as between him and the

members of the family adjusted when a partition takes place in such a family. Bearing this essential principle which also concurrently applies and

which in the instant case is necessarily invokable, the equities of the parties have to be adjusted.

We have already referred to the undisputed fact that out of the consideration of Rs. 8,000 - paid under Exhibit B-4, by the appellant, a sum of

about Rs. 4,582.21 went to the discharge of the debts contracted by Thangamuthu Gounder himself when he was alive. The other portion of the

consideration viz., a sum of Rs. 2,120 paid to discharge the promissory debt under Exhibit B-1 and a sum of Rs. 1,100 paid to discharge the debt

under Exhibit B-2 dated 20th June, 1966 cannot bind the plaintiffs. It is in this difficult situation the equities have to be adjusted. According to the

fifth defendant the entirety of 4 acres of lands purchased by him are not fertile lands. The plaintiffs, on the other hand, would say that a small

portion of the family properties is rocky, land. There has not been a sufficient investigation, presumably because it was not quite necessary at that

stage as to the nature of the property and the quality of the property purchased by the fifth defendant. But as the plaintiffs and the second

defendant are together responsible for discharging three-fourths of the admitted debts contracted, by Thangamuthu Grounder when he was alive, it

follows that such debts are binding on the plaintiffs and the second defendant, and this has to be borne in mind at the time when a final division is

effected of the family properties as between the sharers thereto. We, therefore, find that the debts are binding, as found by the Court below, on the

plaintiffs and the second defendant. But we add that this circumstance shall be taken into consideration by the Court below when a final decree is

passed pursuant to the preliminary decree already passed. Mr. T.R. Ramachandran would say that even assuming as suggested by the other side

that 10 acres out of 18 acres of the family lands are fertile lands, he would in equity be entitled to 21/2 acres of such fertile lands and for this

purposet his Court may make a binding recommendation to the Court below to the effect that at the time of the passing of the final decree, at least

21/2 acres of fertile lands of the family properties, if nor more, be allotted to the share of the first defendant, so that her alienee viz., the appellant

may get the benefit out of it. This appears to be a reasonable request. As we said already, there are not enough materials on record to find

positively as to how many acres of lands belonging to the joint family are fertile lands. Both the parties referred to some rocky lands as family

lands. No one has spoken to the extent of such rocky lands. In those circumstances, we feel that in the interests of justice and having regard to the

well-known principle of adjustment of equities as between the members of a joint family and an alienee, we should make it clear that at the time of

the final decree the first defendant will be allotted the lands already alienated by her as and towards share and in doing so the lower Court will

remember that at least 21/2 acres of fertile lands will be allotted to the share of the first defendant, which advantage will necessarily flow to the

appellant, as well. In so far as the rest of the lands alienated by the first defendant in favour of the appellant is concerned, the Court below shall

after further investigation and as far as possible see that the equities between the parties are so amicably adjusted, so that greater prejudice than

necessary is not caused to the appellant.

With the above observations, the appeal is partly allowed. But there will be no order as to costs.