Veerasekhara Varmarayar vs Amirthavalliammal and Others

Ismail, J.—The first defendant in O. S. No. 187 of 1965 on the file of the Court, of the learned Subordinate Judge, Cuddalore is the

appellant herein. There was a joint Hindu family consisting of one Duraiswami Varamarayar and his three sons, Chandrasekhara Varamaravar,

Gnanasekhara Varamaravar and Veerasekhara Varamarayar, the appellant herein. The father died about ten years prior to the institution of the

suit. Thereafter the joint family continued comprising of the three brothers alone. Chandrasekhara died in the year 1964, survived by his widow,

the 2nd defendant, and his children, defendants 3 to 7 in the suit. Later in November 1964, Gnanasekhara also died survived by his widow the 1st

plaintiff and the only minor daughter the 2nd plaintiff. The suit was instituted by the two plaintiffs for partition and for recovery of mesne profits.

Their case was that in the beginning of 1961, there was a division of the family properties as between the three brothers by the intervention of

panchayatdars and a list was prepared allotting the properties to all the three brothers. According to the plaintiffs, the plaint A schedule properties

were allotted to Chandrasekhara, the plaint B Schedule properties were allotted to Gnanasekhara, the plaint C Schedule properties were allotted

to the appellant and the plaint D Schedule properties were kept in common. Their further case was that the parties contemplated execution of a

regular partition deed later; that notwithstanding the preparation of the list, it was the 1st defendant who was looking after all the properties; that

the 1st defendant did not give the share of the produce out of the properties belonging to the deceased Gnanasekhara as well as the properties

kept in common, namely, the plaint D Schedule properties: and that it occasioned the institution of the suit. Consistent with their case that a

partition had already taken place in 1961, the plaintiffs claimed recovery of possession of the plaint B Schedule properties and partition and

allotment of an one-third share in the plaint D Schedule properties with the consequential relief of recovery of mesne profits in respect of the said

properties. Alternatively they prayed for partition of the entire plaint-schedule properties and allotment of an one-third share to the plaintiffs. One

specific item with reference to which a claim was made by the plaintiffs was based on the allegation that after the death of Gnanasekhara, the

appellant herein sold away casuarina trees of the value of Rs. 30,000/- and not a single pie out of the same was paid to the plaintiffs representing

the share of Gnanasekhara.

The appellant herein resisted the claim of the plaintiffs. According to him, there was no partition as alleged by the plaintiffs in the beginning of

1961. He also put forward a contention that items 38 to 46 covered by plaint D schedule, though purchased in the name of Duraiswami

Varamarayar, father of the appellant, really belonged to Maragathammal, sister of the appellant, who had come and was living with the family of

the appellant since about 40 years prior to the institution of the suit, that the said properties were purchased out of her own separate funds and that

consequently they did not belong to the joint family. Barring the above contention, the 1st defendant did not have any objection to have the

admitted items of family properties divided into three shares and one share being allotted to the plaintiffs in the suit. His further contention was that

the sum of Rs. 30,000/- by way of sale of casuarina trees was obtained even during the lifetime of Chandrasekhara and Gnanasekhara; that they

had spent away the said amount and that therefore the plaintiffs had no right to claim any share therein. His further case was that the family was

doing Guru pooja by spending about Rs. 500/- on the anniversary day every year for one Ayyakannu Samiar, who was the paternal uncle of the

1st defendant-appellant and his brothers: that similarly the family was spending every year a sum of Rs. 300/-for doing utsavam, namely, Thira

Somavaram festival in the month of Karthigai for the Thiruchopuranathar deity in the Tiruchopuram village; and that in the event of partition and

allotment of an one-third share of the properties to the plaintiffs, a charge should be created over them to secure the performance of the Guru

pooja and the utsavam. He appended a list of alleged debts due by the family to the written statement and contended that they were family debts

binding on all the three brothers and therefore provision should be made for the discharge of those debts in the suit itself.

On the basis of these pleadings, the following issues were framed by the trial court-

(1) Whether the partition said to have been effected among the brothers as stated in the plaint true, valid and binding on all the brothers including

defendants 1 to 7 ?

(2) Is the sale of casuarina for Rs. 30,000/- by 1st defendant true and are the plaintiffs entitled to a one-third share ?

(3) Is the denial of the existence of the properties in the written statement of the 1st defendant true and correct ?

(4) Are pooias and utsavams to be performed by the family and should provision be made for them in any partition decree in this suit ?

(5) Are the debts stated in the written statement of the first defendant true, existing and binding on the family ?

(6) Is the first defendant liable to render account ?

(7) To what relief, are the plaintiffs entitled ?

On a consideration of the materials placed before the court, the learned trial Judge has held that the partition pleaded by the plaintiffs as having

taken place in the beginning of 1961 is not true. He has also come to the conclusion that the case of the appellant that Items 38 to 46 covered by

plaint D Schedule belonged to Maragathammal, though the title deeds stood in the name of the father of the parties is not true. With regard to the

debts, the learned trial Judge has held that the debts were untrue and they have been put forward deliberately by the appellant to diminish the share

of the plaintiffs in the family properties. With regard to the claim for performance of Guru pooja and utsavam; the finding of the learned trial Judge

is that the family as such was under no obligation to perform either Guru pooja or utsavam and the fact that one or the other of the members of the

family was performing them will not make the same an obligation on the family as such, so as to warrant creation of a charge over the properties.

With regard to the sum of Rs. 30,000/-, obtained by way of sale of casuarina trees, the finding of the learned trial Judge is that the casuarina trees

were sold only after the death of Chandrasekhara and Gna-nasekhara and therefore Chandrasekhara and Gnanasekhara did not receive a single

pie out of the same and that consequently the plaintiffs are entitled to one-third share in the said amount, namely, Rs. 10,000/-, Under these

circumstances by his judgment and decree dated 30-11-1966, the learned trial Judge passed a preliminary decree for partition and separate

possession of the plaintiffs'' one-third share in the plaint A, B, C and D Schedule properties and gave a direction that an account be taken of the

income from all the suit properties and of future mesne profits under Order 20. Rules 12 and 18, CPC in final decree proceedings, in which the

plaintiffs will be entitled to an one-third share. It is against this judgment and decree that the present appeal has been preferred by the 1st defendant

in the suit.

We may dispose of two points immediately. One is the finding of the learned trial Judge that the plea of partition in the beginning of 1961 put

forward by the plaintiffs has not been made out. Against this finding, the plaintiffs have not preferred any appeal and consequently it is unnecessary

to consider this question further in this appeal. The other point is, the finding of the learned trial Judge that the case of the appellant that Items 38 to

46 covered by the plaint D Schedule belonged to Maragathammal and not to the joint family is not true. Mr. K. N. Balasubramaniam, learned

counsel for the appellant, did not challenge this finding, because on the finding the appellant is benefited by the inclusion of those properties also as

divisible properties and in any event the party aggrieved is Maragathammal who has not been impleaded as a party either to the suit or to the

appeal.

Under these circumstances, Mr. K. N. Balasubramaniam, learned Counsel for the appellant, urged the following three points in support of this

appeal and they are: (1) Even in the written statement, the appellant had indicated the debts due by the family to different parties and a list was

appended. Notwithstanding this, the plaintiffs had not filed any rejoinder to deny the truth or binding nature of the debts and therefore the learned

trial Judge was not justified in finding that the said debts were not true, simply because of discrepancies in the evidence of the witnesses. (2) The

learned trial Judge erred in not creating a charge over the suit properties for securing the performance of Guru pooja and utsayam for the

Thiruchopuranathar deity, since P. W. 1 himself admitted that the utsavam was being performed for a period of two years prior to his giving

evidence. (3) The finding of the learned trial Judge that the casuarina trees were sold and the sale proceeds of Rs. 30,000/- was realised by the

appellant after the death of Chandrasekhara and Gnanasekhara is not correct and even assuming that the said finding is correct, the plaintiffs would

not be entitled to a decree for an one-third share in the sale proceeds because that would amount to granting a decree to the plaintiffs for

accounting against the kartha of the joint family in respect of his past dealing with the joint family properties which, under the Hindu Law, the

plaintiffs are not entitled to. We shall deal with these three points in the order in which they have been referred to above.

As far as the first point is concerned, undoubtedly the appellant has appended a list to the written statement wherein he has given the details of

the debts alleged to be due by the family. Equally it is true that the plaintiffs could have filed a rejoinder challenging the truth and binding nature of

these debts. But law does not compel them to file such a rejoinder. At the same time, once the appellant had pleaded the existence and the binding

nature of these debts, it was for him to establish the same and it could not be contended that the plaintiffs must be deemed to have admitted the

same simply because they had not filed a rejoinder. In this connection, the learned trial Judge has elaborately considered the oral evidence of D.

Ws. 1 to 8 and that of the appellant as D. W. 9 and has come to the conclusion that the alleged debts are not true and they are fictitious and

brought into existence by the appellant in a deliberate attempt to [diminish the share of the plaintiffs in the joint family properties. On going through

the evidence, we are satisfied that this conclusion of the learned trial Judge is fully warranted by the materials on record. Though we entirely agree

with the learned trial Judge in the discussion of the evidence and the conclusion on this point, we shall briefly indicate our reasons for discarding the

evidence of the appellant in this behalf and holding that the alleged debts are not true.

..... ..... ..... ..... ..... .....

(After discussing the evidence His Lordship proceeded)-

These were the witnesses examined in support of the different debts put forward by the appellant herein and for the reasons indicated above, we

agree with the conclusion of the learned trial Judge that none of these debts had been found to be true or binding on the joint family.

Mr. K. N. Balasubramaniam contended that even if the finding of the trial Judge stands with regard to these debts, there were other debts with

reference to which no witnesses were examined and the truth and binding nature of these debts will have to be gone into at the final decree

proceedings. We are unable to accept this argument. With regard to all the debts, either the matter was reserved to be gone into in the final decree

proceedings or it was established during the course of the trial of the suit itself. It could not be that with regard to some debts alone the matter

should be investigated in the course of the trial of the suit itself and with regard to some other debts, it should be reserved for consideration in the

final decree proceedings. As a matter of fact no such request for reservation was made and therefore the only inference possible is that with regard

to the other debts, the appellant did not make any attempt whatever to prove the same by producing necessary evidence. Consequently, we hold

that the appellant has not established that the debts which he had listed as an an-nexure to his written statement were true debts, binding on the

joint family.

As far as the second point is concerned, the evidence is very very meagre. Apart from the ipse dixit of the appellant as D. W. 9, there is

absolutely no evidence to support or make out the case that the family as such was doing Guru pooja annually by spending a sum of Rs. 500/- and

performing utsavam in the temple by spending Rs. 300/-. However, Mr. K. K, Balasubramaniam strongly relied on the fact that P. W. 1 the only

witness examined on behalf of the plaintiffs, had stated that not more than Rs. 25/- was spent for Guru pooja and that utsavam was done by the

members of the family only for two years prior to his giving evidence and contended that that itself would show that the family was doing utsavam

and Guru pooja. We are unable to accept this argument. Once it was the appellant who came forward with the case that the family was performing

utsavam and Guru pooja, the burden was on him to establish the same. There is absolutely no evidence to show that the family as such was

performing either Guru Pooja or utsavam. It may be that one or the other of the members of the family might be pious and therefore, might have

been performing either of the two things. Unless it is established that the family as such has been consistently doing utsavam and Guru pooja, it

cannot be said that the family is under an obligation either by virtue of creation of a trust or by the making of a dedication, to conduct the same so

as to war-rant the creation of a charge over the properties to be allotted to the share of the plaintiffs. It is strange to note that even with regard to

the performance of the utsavam, not even the trustees of the temple in question had been examined to prove the fact of performance of such

utsavam. Mr. Balasubramaniam commented on the observation of the learned trial Judge that no written record of any endowment either in support

of the said utsavam or Guru pooia had been produced. His comment is that the temple is a village temple and there is not lively to be any record in

respect of performance of utsavam. Even assuming the validity of this argument, still it is not the case of the appellant that there were no trustees for

the temple and therefore he had no opportunity of examining the said trustees of the temple to prove the performance of the utsavam in the temple.

Having regard to the utter lack of evidence to make out the case of the appellant in this behalf, we are clearly of the opinion that the learned trial

Judge was fully justified in holding that the appellant had not established that the family was under an obligation to perform either the Guru pooia or

the utsavam so as to justify and warrant the creation of charge in respect thereof over the properties to be allotted to the plaintiffs.

This takes us to the third and last point. As we have pointed out already, the case of the appellant was that casuarina trees were sold during the

life-time of Chandrasekhara and Gnanasekhara themselves and that they had taken away the moneys and therefore nothing was due to the plaintiffs

representing the share of Gnanasekhara. The learned trial Judge has found that the appellant has not established this case and that the casuarina

trees were sold only after the death of Gnanasekhara. The learned trial Judge has pointed out that even in chief examination the appellant as D. W.

9 has stated that he did not remember the exact date, month and year in which the said casuarina trees were sold, though he vaguely stated that the

sale was about 1 1/2 years or so before the death of Gnanasekhara. Again, he was not able to say how much out of Rs. 30,000/- each of the

brothers took. Having regard to all these circumstances, the learned trial Judge came to the conclusion that the appellant had not made out the case

that the pasuarina trees were sold during the lifetime of Chandrasekhara and Gnanasekhara and that they had taken their share in the amount.

Mr. Balasubramaniam contends that even assuming that casuarina trees were sold only after the death of Gnanasekhara that will not give any

right to the plaintiffs to claim an one-third share in the sale proceeds because that will about to asking for an accounting from the kartha of the joint

family in respect of his past dealings with the properties of the joint family. We are unable to accept this argument.

The liability of a kartha to account to the members of a coparcenary has been dealt with in paragraph 238 of Mulla''s Hindu Law, 13th Edition.

In this paragraph it is stated that in the absence of proof of misappropriation of fraudulent and improper conversion by the manager of a joint family

estate, he is liable to account on partition only for assets which he has received, not for what he ought or might have received if the family money

had been profitably dealt with and all that a coparcener is entitled to in a suit for partition is an account of the family property as it exists at the time

he demands a partition. However paragraph 238 (2) states:

Since the institution of a suit for partition amounts to a severance of joint status, the manager is from and after the date of such a suit, strictly bound

to account for all receipts and expenses, and Can take credit only for such expenses as have been incurred for the benefit or necessity of the

estate, and the net income after deducting such expenses is to be divided among the coparceners according to their shares"".

The argument of Mr. Balasubramaniam is that with reference to the date of the institution of the suit, the receipt of the sale proceeds of casuarina

trees was a past transaction in respect of which the plaintiffs are not entitled to ask for an accounting and they will be entitled to an accounting only

from the date of the suit. This argument involves the consideration of the rights of the plaintiffs u/s 6 of the Hindu Succession Act, 1956 (Central

Act 30 of 1956), hereinafter inferred to as the Act. Since Mr. Balasubramaniam sought to address elaborate argument with regard to this section,

it is desirable to extract the said section along with the proviso and the Explanations in full and we do so accordingly.

When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property,

his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act:

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 coparcenary property shall devolve by testamentary of

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

Explanation 1: For the purposes of this section, 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 partition or not.

Explanation 2: Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the

coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein.

Mr. Balasubramaniam''s contention is that having regard to the language of Section 4(1)(a) of the Act, this provision contained in Section 6 does

not abrogate or repeal the other provisions of the Hindu Law, namely, those provisions relating to the joint family, management of the joint family

and the powers of a Kartha in respect of the joint family properties. The joint family not being disrupted, the Kartha continued to represent the

family and when he received the sale proceeds of the casuarina trees, he received the same on behalf of the family and therefore any accounting

that may be asked for from the Kartha can be only with reference to the date of the institution of the suit and not earlier. Mr. Balasubramaniam''s

further contention is that Explanation 1 to Section 6 merely uses the expression, ''the share in the property'' and not ''the property'' and

consequently all that Section 6 does is to fix the fraction of the deceased coparcener in the joint family property and not to fix the property which

would be available for partition and that the properties that would be available for partition will be only those that are actually in existence on the

date of the suit for partition and that in between the death of the coparcener concerned and the date of the suit, the right of the Kartha to deal with

the joint family properties remained intact and not affected by Section 6 of the Act. V/e are unable to accept this argument. Since Gnanasekhara

died leaving behind his widow and a daughter, the plaintiffs herein, admittedly the proviso to the section is attracted. The language of the proviso

end Explanation I, which applies to the proviso alone, is clear. The object of the enactment is to introduce a certain female heirs in the Hindu law of

succession and confer on them rights in the property or interest of the deceased coparcener That object has to be given effect to as provided for in

the statute and the said right cannot be whittled or watered down by having recourse to any other provision of customary or traditional Hindu Law.

Mr. Balasubramaniam''s contention, based on Section 4(1)(a) of the Act, is that the traditional or customary Hindu Law will cease to apply only in

respect of matters for which provision has been made in this Act and this Act not having made any provision with regard to the management of the

joint family as such and the powers of the kartha of the joint family, the joint family continued and the powers of the Kartha remained intact. In our

opinion, the effect of Explanation 1 to Section 6 is to carve out the interest of a deceased coparcener from the joint family property and from the

moment of the death of the coparcener concerned, his interest ceases to be coparcenary property and therefore outside the powers and

jurisdiction of the Kartha to deal with the same. If the argument of Mr. Balasubramaniam is to be accepted, in conceivable cases, the heirs of a

deceased coparcener may get nothing at all. It may happen in a particular case, the surviving coparceners may have a number of sons and

daughters. If the powers of the kartha are conceded, as contended for by Mr. Balasubramaniam, he will be justified In dealing with the entire joint

family property and disposing of the same in connection with the marriages of those sons and daughters and even by making gifts to the daughters

on the occasion of their marriage. Mr. Balasubramaniam frankly concedes that such a situation is possible and conceivable, if so, it will follow that

the very right which is sought to be conferred on the female heirs by this Act will be defeated and nullified by this process, Mr. Balasubramaniam

argues that the heirs will have to thank themselves for such a situation, because if they had immediately filed a suit for partition and separate

possession of their share in the interest of the deceased coparcener, such a contingency would not have occurred. In our opinion, the construction

of the section cannot be made to depend upon the time when the heirs choose to file a suit for partition, and irrespective of the time when a suit for

partition is filed, the section will have to be construed only in the same manner. We are qf the opinion that the intention of the fiction created by

Explanation 1 that a notional partition must be deemed to have taken place immediately before the death of the coparcener concerned is to

crystallise the interest of that coparcener not merely with regard to the fraction that he will be entitled to in the entire joint family properties but also

with regard to the joint family properties with reference to which that fraction will operate. That is the reason why we pointed out that the effect of

Explanation 1 to Section 6 is to parve out the interest of the coparcener concerned from the entire joint family property so as to vest the same in

the heirs of the deceased coparcener, with the result that said interest of the deceased coparcener ceases to form part of the coparcenary property

from that moment onwards. One of the cardinal rules of construction is, whenever a statute creates a fiction, that fiction must be given full effect to

so as to perpetuate the object of the statute which has created the fiction. A statutory fiction which treats an imaginary state of affairs as real

requires that the consequences and incidents of the putative state of affairs must flow from or accompany it as if the putative state of affairs had in

fact existed and effect must be given to the inevitable corollaries of that state of affairs. As held by the Supreme Court in The State of Bombay Vs.

Pandurang Vinayak Chaphalkar and Others, -

When a statute enacts that something shall be deemed to have been done, which in fact and truth was not done, the court is entitled and bound to

ascertain for what purposes and between what persons the- statutory fiction is to be resorted to and full effect must be given to the statutory fiction

and it should be carried to its logical conclusion.

Therefore, it follows that the operation of the fiction, namely, notional partition and its inevitable corollaries and incidents is only for the purpose of

giving effect to the proviso, namely, devolution of the interest of the deceased in the coparcenary property by way of succession as against

survivorship. Consequently, according to our construction of this provision, the joint family or coparcenary continues, but the interest of the

deceased coparcener in the coparcenary property is carved out from the entire joint family property and it ceases to form part of the coparcenary

property from the moment of the death of the coparcener concerned and that separate and carved out interest vests in different heirs of the

deceased coparcener as per the provisions of the Act at the moment of the death of the coparcener. Consequently, the kartha will have no right to

deal with that property thereafter. Since the right of the Kartha to deal with the property is dependent upon the property being joint family

property, once the particular interest ceases to be part of the joint family or the coparcenary property, the right of the Kartha with reference

thereto automatically and enevitably comes to an end. This result flows directly from the proviso read with explanation 1 and therefore Section 4(1)

(a) of the Act is not of any assistance to support the contention of the learned Counsel for the appellant. As far as the present case is concerned,

since the interest of Gnanasekhara in the casuarina trees had devolved on his heirs, namely, the plaintiffs, from the moment of the death of

Gnanasekhara, the plaintiffs are entitled to recover their share of the value of the casuarina trees from the appellant herein and the general principle

referred to already as to non-liability of a kartha to account in respect of his past dealings with the joint family property will have no application,

having regard to the statutory change effected by the provisions contained in the Act, and in particular the proviso to Section 6 read with

Explanation 1.

Notwithstanding the representation of Mr. Balasubramaniam that this question has not been considered in any of the decided cases, we find

that the effect of Section 6 of the Act and the question that arises for consideration in relation thereto have been considered by several High Courts

of this country in a number of decided cases to which we shall make reference immediately. We may also point out that the decisions in those

cases support the conclusion which we have arrived at with reference to the scope and effect of Section 6 of the Act.

The first decision is that of a Bench of this court in Karuppa Gounder and Others Vs. Palaniammal and Others, . In that case, one Kalianna

Gounder was murdered on 10th September, 1956, that is after the coming into force of the Act. He was a member of a joint Hindu family of which

other members were his father and his brother. Kalianna Gounder was survived by his widow and daughter and they sued for a partition of the

joint family properties. One question that came to be considered was whether a gift made on 12-5-1957 by the kartha of the family after the death

of Kalianna Gounder in favour of the sister of Kalianna Gounder could be taken into account for the purpose of ascertaining the property that

should be allotted to the widow and daughter of Kalianna Gounder. Based on the provisions contained in the Hindu Women''s Rights to Property

Act 1937, and the decisions of Courts thereon, it was contended that the interest which the widow and daughter of Kalianna Gounder would take

in the joint family property was subject to the essential incidents of the management of the property by the kartha and therefore the property

covered by the gift referred to above must be deducted from the entire property and only out of the balance, the share of Kalianna Gounder should

be worked out so that the same may be allotted to his widow and daughter. This argument was rejected by the Bench of this Court. After referring

to Explanation 1 to Section 6 of the Act, the Bench held-

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''s 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 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.

With reference to this decision. Mr. Balasubramaniam frankly concedes that the principle underlying this decision will apply to the facts of this case,

but states that the decision requires reconsideration, because it does not properly construe Section 6. We are unable to accept this argument,

because we ourselves have construed Section 6. independently of this decision, to the same effect.

The next decision is that of a Full Bench of the Kerala High Court in Venkiteswara Pai Rama Pai Vs. Luis, . That case dealt with a suit for

specific performance of a contract filed against a joint family consisting of three members and all the members of the family were impleaded as

parties to the suit. During the pendency of the suit, the 2nd defendant died. The question for consideration was whether the heirs of the 2nd

defendant should be impleaded as parties and in the absence of such impleading, the suit abated or the kartha, the 1st defendant continued to

represent the joint family, after extracting Section 6 of the Act, the Full Bench proceeded to hold:--

The 2nd defendant having left behind him a widow, two sons and two daughters the aforesaid proviso and the Explanations are attracted in his

case; and the result is that his share in the coparcenary property must be deemed to have been partitioned out immediately before his death and to

have devolved on his heirs. That share, being no more part of the coparcenary property, is not within the competence of the 1st defendant as the

Kartha of the joint family to represent in the suit..... The 2nd defendant''s share in the suit property cannot be represented after his death by the 1st

defendant as has been mentioned above, and the plaintiff has failed to implead his legal representatives for about three years after date of death of

the 2nd defendant"".

The next is the decision of a single Judge of the Calcutta High Court in Narayan Prasad Ruia Vs. Mutuni Kohain and Another, . That arose out

of a suit for eviction filed by the Kartha of a Mitakshara family consisting of himself and three minor sons (1) Mahendra Kumar Ruia. (2) Surendra

Kumar Ruia and (3) Maheshkumar Ruia. During the pendency of the proceedings, the second of the minor sons, namely, Surendra Kumar Ruia

died leaving behind his mother. The question for consideration was whether the suit for eviction could be proceeded with by the father representing

the joint family along with two minor sons. The learned Judge after referring to Section 6 of the Act stated-

What is seen, therefore, is a notional partition coupled with devolution of such notionally partitioned property upon Surendra Kumar Ruia''s

mother. What remains then of Narayana Prasad Ruia as the kartha? A Kartha (for) a joint family property is quite an understandable concept. But

a kartha for a divided property, of property partitioned, notionally though, appears to be incomprehensible. So, the old kartha theory cannot help

matters forward for the petitioner before me, and Narayan Prasad Ruia as kartha cannot represent his deceased son''s mother and necessarily his

wife upon whom devolves the share of the property after partition. The very nexus of the joint family property is gone.

The next decision is that of a single Judge of the Bombay High Court in Govindram Mihamal Vs. Chetumal Villardas, . In that case one

Mithamal, father of the plaintiff, as kartha of the joint family had advanced certain moneys to the defendant. After the death of Mithamal in

February 1958. the plaintiff who is the eldest son of Mithamal filed a suit for recovery of the amount due. One of the defences taken by the

defendant was that Mithamal left behind among other heirs two married daughters and without those married daughters joining, the suit instituted by

the eldest son of Mithamal was not competent. This argument was based on Section 6 of the Act. After an elaborate consideration of Section 6

and the provisions of the Hindu Women''s Rights to Property Act. 1937, the learned Judge accepted the defence and held that the eldest son of

Mithamal alone was not competent to institute the suit. The learned Judge pointed out-

The Hindu Succession Act introduces a new class of heirs, and the devolution of interest on them by succession is a reality which must be

accepted and faced. In a Hindu corparcenary family, on the death of one of the coparceners, what we find is that the interest of the deceased has

been ascertained for the purpose of separate succession under the Act and that succession introduces a new class of heirs who are not or may not

be members of the joint Hindu family. ..... As it happens in the present case, the two daughters of the deceased Mithamal are married long before

the present suit came to be filed; they could not, therefore, be the members of the joint Hindu family of the plaintiff. They have, on the death of the

deceased, succeeded to a certain interest in the property. What that interest works out is a matter of calculation. As a matter of law, the interest

which they inherit by succession vests in them immediately on the death of the deceased. This is a circumstance which must be recognised as a fact

and must be given its due effect.

The minimum that can be said, therefore, is that when the death of a coparcener takes place in a family falling under the proviso to Section 6, the

female heirs like the daughters in the present suit inherit an interest in the joint family property by succession under the Hindu Succession Act, and

that interest or share becomes vested in them ..... the property of the joint family Is at that stage partly vested in members who are already

members of the coparcenary and partly in some heirs who have nothing to do with the joint family as such. At any rate, the unmarried daughters,

who may be memberg of the family, inherit the interest by succession under the Hindu Succession Act and not under the provisions of the

customary Hindu Law. To that extent, they have an independent right which is vested in them and may be continued to be enjoyed jointly until

physical separation takes place. With that result following, one thing seems to be clear. The representative character of the kartha is clearly

affected. He cannot represent that property which vests in a person other than a coparcener. The nature of the property also suffers to some

extent.

The last of the decisions is that of a Full Bench of the High Court of Andhra Pradesh in P. Govinda Reddy and Others Vs. Golla Obulamma, ,

In that case, after the death of the mortgagee, one of the heirs of the mortgagee alone filed the suits for recovery of money due under the

mortgages. An objection having been taken that the other heirs are not impleaded as parties, applications were filed for impleading the others as

parties. In one case the application for impleading the others was allowed after the period of limitation for a suit by them had expired and in the

other case it was dismissed. In that context, the Andhra Pradesh High Court had to consider whether the suit for enforcement of the mortgage filed

by one of the heirs of the mortgagee alone was competent. The Full Bench of the Andhra Pradesh High Court considered the question with

reference to the provisions contained in the Transfer of Property Act, Indian Contract Act, the CPC as well as the Hindu Succession Act. With

regard to the Hindu Succession Act, after quoting Section 6. the Full Bench pointed out:

One would do well to bear in mind that Section 6 of the Hindu Succession Act is concerned with the devolution of a deceased coparcener''s

interest alone. It has nothing to do with the disruption of the joint family status. The coparcenary will continue notwithstanding the death of a

coparcener until partition is effected. Till then the kartha of the joint family will be in charge of the management of the coparcenary property and

will be entitled to exercise all powers which he enjoys by virtue of his position. 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 taken 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 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 interest 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 Kartha in relation thereto therefore cannot exercise his powers as a Kartha. The interest having devolved on various heirs in specified

shares and such heirs being tenants in common in relation to that property, the kartha of the joint family property to which the coparceners belong

cannot represent the female heirs who are not coparceners.

Thus, a reference to the above decisions will clearly support the conclusion we have reached on the effect and scope of Section 6 of the Act.

There is yet another circumstance which supports our conclusion. As is clear, the proviso to Section 6 deals not only with intestate succession,

but also testamentary succession. Section 30 expressly enables a coparcener to dispose of his interest in the coparcenary property testamentarily.

In the event of a testamentary succession, from the very nature of the case, the legatee''s interest is crystallised and specified at the moment of the

death of the testator. The legatee may be an utter stranger to the entire family. In that event, it cannot be contended that so long as the legatee has

not filed a suit for partition, the kartha is entitled to deal with the deceased coparcener''s interest in the coparcenary property, as if the same

remained undisposed of. Consequently, Section 6 has to be construed in such a way that it gives effect to the object of the Legislature not only

with regard to testamentary succession but also with regard to intestate succession. As a matter of fact, even with regard to intestate succession, all

the heirs entitled to succeed under the proviso will not be members of the joint family of which the deceased was a member. For instance, a

married daughter, son of a predeceased daughter and daughter of a predeceased daughter will not be members of that family. Under the proviso,

the interest of the deceased coparcener in the coparcenary property devolves and vests in them also. Can it be contended that till they file a suit for

partition, the kartha of the joint family will be entitled to deal with the property so as to affect their rights in the property ? The answer is

emphatically in the negative. Under these circumsances, the only reasonable construction of the statutory provisions is that the moment a

coparcener dies, his interest in the coparcenary property gets crystallised and separated from the rest of the property and the property so

separated devolves on his heirs by succession under the provisions of the Act, as tenants in common and that excludes any right of the kartha of

the coparcenary to deal with that property. Therefore, on the death of Gnanasekhara, his interest in the casuarina trees vested in the plaintiffs

herein, namely, his widow and daughter, and since the appellant herein sold the casuarina trees after such death, he is accountable to the plaintiffs

for the sale proceeds of the said casuarina trees and consequently the plaintiffs are entitled to an one-third share of the said sale proceeds, namely,

Rs. 10,000/-.

Under these circumstances, we hold that there is no substance whatever in the appeal and dismiss the same with costs of the plaintiffs-

respondents.