Venkata Reddi and Others vs Lakkireddi Venkata Rama Reddi and Others

Chandra Reddy, J.—These two appeals arise out of two suits filed by two branches of a joint Hindu family for partition of their family properties. The subject-matter of these appeals therefore is the same as also the parties though their array is different. A S. 63/51 arises out of O. S. 103/49 while the other appeal out of O. S 111/49. The latter one was instituted earlier as O. S. 4/49 in the District Court, Cuddapah. The two suits were tried together and evidence was recorded in O. S" 111/1949.

To understand the issues involved in these appeals, the history of this litigation may be traced briefly.

One Lakkireddy Thirupathireddy of the village of Arakatavemula, Cuddapah District, had three sons-Vehkata Kondareddy, Peda Tirupelu Reddy and China Thrirupelu Reddy. Of the three, it was only Peda Thirupelu Reddy that had issues. He had three sons, Balakondareddy by his first wife; Peda Butchireddy and China Butchireddy by his second wife. It is the descendants of Balakondareddy that are concerned with the present litigation. Alter his mother''s death, Balakondareddy separated himself from his father and brOrs. find went to live with his uncles.

On the 1st of July 1910, Venkatakondareddy executed a will bequeathing all his properties to the four sons of Balakondareddy-Defendants 1, 2 and 5 and the father and husband of 1st and 2nd Plaintiffs respectively in O. S. 111/49-who were born then. Subsequently Rajukondareddy and Venkatakondareddy (Defendants 4 and 5) in O. S. 103/49) were born to Balakondareddy. The next day Balakondareddy instituted a suit O. S. 466 of 1910 for a division of the properties that seemed to have been enjoyed in common between himself and his two paternal uncles.

This ended in a compromise dated 26-6-1911 by and under which the properties were divided into five shares-one share assigned to Balakondareddy and the rest taken in equal moieties by his two uncles-Items 1 to 4 of the present A schedule were allotted exclusively to Venkatakondareddy. We are not here concerned with the properties that fell to the share of China Tirupelu Reddy. Items 5 to 25 of a schedule in both the suits were kept joint between Balakondaieddy and Venkatakondareddy. Venkatakondareddy died issueless about the year 1915. On his death, all the properties belonging to Venkatakondareddy and Balakondareddy were enjoyed by Balakondareddy and his children.

In 1939 Balakondareddy died. His sons continued to live as members of a joint Hindu family. In the year 1947 Butchi Tirupathireddy the father of the 1st Plaintiff and the husband of the 2nd Plaintiff in O. S. 111/49 died. The next year i.e. on 12-8-1948 a partition was effected under Ex. A-3. There is controversy between the parties as to whether under this document it was only the 1st Defendant that separated himself while the rest remained joint or whether there was a dissolution of the joint family, and this will be resolved in the course of the judgment.

O. S. 111/49 was brought for partition of the family properties by the 2nd Plaintiff both on her own right and on behalf of her minor son the 1st Plaintiff. This was founded inter alia on the allegations that on the death of Butchi Tirupathireddy both the Plaintiffs were driven out of the house by Defendants 2, 3 and 4 when their share in the family properties was demanded and that earlier a partition deed was brought into existence with the object of depriving the Plaintiffs of then legitimate share.

A l/4th share was- claimed in the properties left by Venkatakondareddy under Ex, A-2 and a l/6th share in the ancestral properties. To this suit were impleaded all the brOrs. of late Butchi Tirupathireddy but not the sons of 1st Defendant, Peda Venkatareddy. Therefore, the latter filed Anr. suit (O. S. 103/49) for the same reliefs impleading all the parties to the other suit as Defendants, and ignoring the partition to which their father was a party.

Both the suits were contested by- China Venkatareddy, Rajukondareddy and Venkatakondareddy, being Defendants 2 lo 4 and Defendants 2, 4 and 5 in O. S. Ill of 1949 and O. S. No, 103 of 1949 respectively. For the sake of convenience, they will be described in these appeals with reference to their ranks in O., S. Ill of 1949. The defence to the first suit was that the partition was not in the interests of the minor first Plaintiff, that the Plaintiffs were entitled only to a l/5th share in the properties belonging to the joint family consisting of these Defendants and 5th Defendant and the Plaintiffs, irrespective of whether they formed part of the ancestral properties or were acquired under the will of Venkatakondareddy, that items 6 to 8 were gifted to their sister and therefore not available for division, that at any rate the Plaintiffs should be made liable for their share of the- liabilities due by the family and that the provision should be made for the maintenance of their unmarried sister, Tirupathamma, and for her marriage expenses. The other suit was mainly resisted on the ground that the Plaintiffs had no right to sue for a general partition as their father separated himself as representing his branch in 1948 and their remedy, if any, was only to ask for a division of the properties that fell to the share of their branch.

The trial Judge decreed both the suits on the ground that the partition of 1948 was a fraudulent one and was not therefore binding on the Plaintiffs in either suit that the interests of the minor Plaintiff in O. S. Ill of 1949 warranted a decree for partition being granted. He thought since the will executed by Venkatakondareddy stood revoked by terms of the compromise the Plaintiffs'' branches were not entitled to any preferential claim in respect of the properties of Venkatakondareddy and they were each entitled only to a l6th share in all the properties enjoyed jointly by all the members of the family without any distinction. He also came to the conclusion that there were no liabilities due by the family for the discharge of which provision should be made before a division could be effected. A decree was granted for Rs. 30/- by way of maintenance to the unmarried sister of the contesting Defendants and for Rs. 3,000/- for her marriage, In the result, the properties were directed to be divided into Ave equal shares and each of the branches allotted one share. All the parties being aggrieved by this judgment have preferred either appeals or memoranda of cross-objections.

We will first take up A. S. 64/51 as it arises out of a suit that was brought earlier. The first point debated here was whether it was in the interests of the minor to grant a decree for partition. Before we take up this issue, we have to determine whether in 1948 there was a dissolution of the whole joint family or whether it was only Peda Venkatareddy that walked out with his share. It is an indisputable proposition of law that one member of a joint Hindu family can separate him-self while other coparceners may continue to be joint and enjoy the properties that remained thereafter. Whether there was a severance in status as regards all the members or it was only one member that got himself separated has got to be proved like any other question of fact, there being no presumption either that the other coparceners remained united or became divided. This has to be decided with reference to the subsequent conduct and on the terms of the document of partition if they could furnish any guidance.

In the instant case, the recitals in Ex. A-3 could only point to one conclusion, namely, that it was only Peda Venkatareddy that separated himself from the rest of the family while the other coparceners continued to be joint. The whole Property was divided into two shares in the proportion of 1 : 5 and the smaller one was given to Peda Venkatareddy. The subsequent conduct of the parties also was consistent with the theory that other members of the family continued as joint family. The acquisitions were made by Venkatakondareddy who assumed the management thereafter for the whole family and there is no circumstance suggestive of an opposite conclusion. It is unnecessary to pursue this matter any further. Suffice it to say that the only reasonable conclusion that could be reached on the material on record is that even after the partition under Ex. A-3 the other coparceners including the 1st Plaintiff remained undivided.

On this basis, we have to consider whether a Court will be justified in exercising its discretion in favour of partition so far as the minor Plaintiff is concerned. The chief criterion in suits of this kind is whether it is for the benefit of the minor Plaintiff to pass a decree for partition. The suit will be decreed if by allowing the properties to be in the hands of the other coparceners his interests will suffer either by reason of their being not prudently managed or by denial of his rights or by not looking after him properly. If his continuance as a member of the joint family is detrimental or prejudicial to his interests, surely, a Court will not only be justified to order a partition but it is its bounden duty to do so. Therefore, the question that presents itself in each case is whether the partition will advance his interests, i.e., will in any way be advantageous to him. It is in the light of this doctrine that the problem has to be solved in this case.

The case for the Plaintiffs in this behalf was that the demand for a share resulted in their being sent out of that family. Though it is not clearly expressed, the reference seems to be to the share of 2nd Plaintiff. This is supported by P. W, 1 and D. W. 1. We are inclined to believe their testimony on this part of the case as it is rendered probable by the contents of Ex. A-3. This document makes no mention of the 2nd Plaintiff, notwithstanding that the Hindu Women''s Right to Property Act has conferred certain rights on her.

It is evident from Ex. A-3 that her rights have been ignored. It is very likely that when she wanted to have her rights enforced she was ill-treated-assuming the actual turning out of the family is an exaggeration-with the result that she had to seek protection in her parental home. This, in our judgment, constitutes a sufficient ground for directing a partition. In deciding whether a division is in the interests of the minor or not. a Court is not confined to considerations merely personal to the minor. It may take into account matters touching his mother, wife, or any other person in whom he is interested. This is the view we have expressed recently in A. S. 662 and 766 of 1950 (Mad) (A). In support of this conclusion we relied on Thavva Rangasayi and Others Vs. Thavva Nagarathnamma, .

It is argued by Mr. Bhujangarao that in Thavva Rangasayi and Others Vs. Thavva Nagarathnamma, it was unnecessary for the Full Bench to adjudicate upon it and the observations which are contained in the judgment of Anantakrislma Ayyar J. are only obiter and need not be given much weight. We are unable to give effect to this argument. We have adopted the reasoning of the learned Judge as it appeared to us to embody a correct principle of law, if we may say so with respect, and we see no reason to depart from it now. Consequently, we stick to that dictum. Viewed in the light of this rule, there can be little doubt that the separation of the minor''s share is justified.

That apart, the attitude of the Defendants 2, to 4 as disclosed in Ex. A-3 was hostile to the interests of the minor. This document proceeds on the assumption that all the members of the joint family were entitled to an equal share in all the properties whether they originally belonged to their branch or were bequeathed under the will of Peda Venkatakondareddy. This is clarified in the written statement filed on behalf of these Defendants. It is asserted therein that Venkatakondareddy has no capacity to make a will as he was a member of the joint family along with Balakondareddy, that even otherwise the will became ineffective by reason of the terms of the compromise, Ex. A-1, and that in any event the first Plaintiff could not claim a higher right in view of the fact that all the legatees and the other members of the family made no distinction between the two sets of properties.

This shows there was a conflict of interests between the 1st Plaintiff and the contesting Defendants and the claim put forward by them was certainly adverse to the minor Plaintiff. That apart in order to grant a relief to the 2nd Plaintiff who is entitled to a share in the properties loft by her husband under the Hindu Women''s Right to Property Act of 1937 the share to be allotted to the branch of Butchi Tirupathireddy has to be defined. This also distinguishes the present case from a normal one where strict proof of benefit to the minor is required. It was next urged by Mr. Bhujangarao that as the 1st Plaintiff died during the pendency of the suit, the suit has to be dismissed in regard to his share as it could no longer be considered beneficial to the interests of the minor. The foundation for this argument is a passage from Mayne''s Hindu at page 555 (11th Edition) which is in the following words:

Did it is by no means .clear that, where a minor dies before the Court decides that the suit is for his benefit, a legal representative who can come in only if the minor has become separated in interest, is entitled to continue the suit for his or her own benefit; for there could be no benefit to the minor when he is dead.

This in its turn is based on the judgment of the High Court of Mysore in Narasiniha v. Nanjamma, 45 Mys HCR 460 (C) as can be seen from the foot-note, which decided that "till the Court decides that the action was for the benefit of the minor, there can be no severance and if the minor dies before such decision, the rule of survivorship will come into play.

With great respect to the learned Judges, we are unable to acquiesce in this proposition. It undermines the foundation of legal concepts that have been evolved from the judicial pronouncements.

It is now well decided that a suit instituted on behalf of the minor for partition will operate As severance in status with effect from the date of the suit if ultimately it is decided that it is for the benefit of the minor. Therefore the death of the Plaintiff would not debar the Court from granting a decree if it is found that at the time of the suit the interests of the minor required such a course. His legal representatives could come on record and prosecute the suit. In these circumstances, we think the suit on behalf of the minor was maintainable for partition.

The next question for adjudication is whether the Plaintiffs should be allotted a l/4th share in the properties devised under Ex. A-2. As already (mentioned, the learned Subordinate Judge thought that the will stood revoked by virtue of the terms of Ex. A-1. The reason for this conclusion was that the properties that fell to the share of Venkatakondareddy as a result of the compromise were different from those that existed at the time of the execution of the will. We think this is an unsound reason. Since the will takes effect only after the death of the testator, it will operate only in respect of properties that the testator died possessed of. There can be no support for the view of the learned Judge either in principles of Hindu Law or in Judicial precedents. It is not necessary that there should be identity of the property. The will specifically recites that the properties which belonged to the testator would devolve on the legatees which could only refer to those that belonged to him at the time of his death.

Mr. Bhujangarao the learned Counsel tried to sustain this judgment not only on this ground but also on the additional one that the will should be deemed to have been cancelled as it was not reaffirmed in other documents. This is wholly an unsubstantial argument. A will be effective till it is revoked either expressly or by necessary implication, such as by the execution of Anr. . It does not need'' to be kept alive by making references to it in other documents. That apart, there is a specific recital in Ex. A-1 about it making it clear that the testator intended to stand by Ex. A-2. This being his last will and testament must be given effect it.

This leads us to the question whether the legatees lost any special right in respect of the properties on the theory of blending. Here also Mr. Bhujangarao tried to support the judgment or be trial Court. It is maintained by the learned Counsel that as there was nothing to indicate that the properties bequeathed by Venkatakondareddy wife enjoyed separately by the legatees they must be regarded as having been blended with those of the joint family properties. This argument cannot prevail. The burden of proving that property which I formed the self-acquisition of an individual member of a joint family has lost that character by reason of its being blended with the ancestral property is on him that asserts it.

It is true that the Plaintiffs could not show that, a distinction was made between the properties acquired under Ex. A-2 and those of the joint family. That does not carry the Appellants very far. It should be shown that they became impressed with the character of joint family properties by virtue of their having been thrown into the hotchpots. It is not sufficient to show that the income from the separate properties was used for the benefit of the members of the family.

But, it should be established that the owner was conscious of his right to the properties and intended to abandon his-claim thereto. The legal conception of blending is embedded in the idea that there should be a conscious surrender. So, unless it is proved that the owner of the property had volition to surrender his exclusive rights in favour of the joint family, the separate properties do not lose their nature and the theory of blending cannot be, upheld. It could not be inferred that he voluntarily threw the property into the joint stock with the intention of waiving his rights in the separate property from acts which may be traceable to affection or kindness. Such acts cannot have the effect of making those properties lose their character of self-acquisitions.

In this context, we may refer to a passage in Mayne''s Hindu Law at pages 348 and 349 (11th Edition). This is what the learned author says:

Thirdly, property which was originally self acquired, may become joint property, if it has been voluntarily thrown by the owner into the joint stock, with the intention of abandoning all separate claims upon it. This doctrine has been repeatedly recognised by the Privy Council. Perhaps the strongest case was one where the owner had actually obtained a statutory title to the property under the Oudh Talukdars Act I of 1869. He was held by his conduct to have restored it to the condition of ancestral property. The question whether he has done so or not, is entirely one of fact, to be decided in the light of all the circumstances -of the case; but a clear intention to waive his separate rights must be established and will not be inferred from acts which may have been done merely from kindness or arlection.

In the case of Periakaruppan Chetty v. Aruna-chalam Chetty, ILR 50 Mad 532 : AIR 1627. Mad 676) (D) where a father built a house of considerable value on a site worth a few rupees and afterwards adopted a son and both lived in the same house, it was held that the superstructure did not cease to be such and become joint family property by any physical act but the acquirer''s own volition and intention to surrender his exclusive rights. Where the manager of Mitakshara joint family mixes the income of the joint family with the income of his separate property or pays both the incomes into the same account in a bank, it will not be sufficient evidence of an intention to alter the character of the separate property, if he . maintains separate accounts of both the incomes." The rule stated in Naina Pillai and Others Vs. Daivanai Ammal and Another, by a Bench of the Madras High Court is to the same effect. There a karnam service inam which was enfranchised in favour of the husband of the Plaintiff was dealt with by himself and his brOrs. as the joint family property for a number of years. Various documents such as sales and mortgages on this footing were executed. Despite this long course of conduct the learned Judges upheld the claim of the Plaintiff to this property as the self-acquisition of her husband in so doing this is what they observed:

The question is whether in these circumstances properties which must be considered to be self-acquired properties have become joint family properties. By merely being dealt with as joint family property the self-acquired property of the person who deals with it as such does not necessarily lose its character of separate property.

This principle is re-affirmed by Anr. Bench of the Madras High Court in narayanaswami Mudaliar and Others Vs. Ratnasabapatby Mudali and Another, . It is unnecessary to multiply authority. Suffice it to say both on principle and authority the character of the separate property of a coparcener will not be altered except by clear proof of its having been brought into joint stock. It should be a conscious and an intentional act. Viewed thus, the Defendants have failed to make out their case on this aspect of the matter. It follows that the Plaintiffs would be entitled to a l/4th share in respect of properties conferred on the legatees under Ex. A-2 in the light of Ex., A-l.

As regards the joint family properties, the Plaintiffs could claim only a l/5th share in the properties in the possession and enjoyment of the family constituted by the Plaintiffs and Defendants 2 to 5. The argument of Mr. Somasundaram that a decree should be granted for a l/4th share even in regard to this is untenable. The basis of his claim is that since one of the brOrs. , Bala Ven-katareddy i.e., D-5, who was of a demented mind had disappeared and had not been heard of for several years his share would survive to all the members of the erstwhile joint family including the 1st Plaintiff.

This argument cannot find acceptance with us. There is no dispute that Bala Venkata Reddy had : disappeared. But, u/s 108 of the Indian Evidence Act, in order to presume that a man is dead, seven years should elapse. The only evidence, we have either oral or documentary, is that. Bala Venkatareddy was not heard of for a year-and-half prior to the execution of Ex. A-3. That would not be sufficient to invoke Section 108 of the Indian. Evidence Act. So, on the date of the plaint, Bala Venkata Reddy could not be presumed to be dead. It is true that on this date the presumption under that section could come into play.

In partition actions, subsequent events could be taken into account so as to enlarge the rights of the parties. But this principle does not assist the Plaintiffs in the instant case. The properties : acquired under Ex. A-2 being the self-acquisitions; of each of the legatees for the reason that'' the property obtained by device from a collateral is his separate property, it is only a case of inheritance.

That being so, Defendants 2 to 4 being nearer than the 1st Plaintiff the latter is excluded and he could not put forward any claim thereto Even if it were regarded as ancestral property the Plaintiffs would not have been on a better footing. The plaint has operated as severance in status. Therefore, the Plaintiffs will only be entitled to a l/5th share in respect of these properties Despite the death of the 1st Plaintiff, the 2nd Plaintiff will be-entitled to all these reliefs as she could continues the action as his legal representative.

Another matter which deserves consideration in this appeal is the provision to be" made for the marriage expenses of Tirupathamma. The trial Court awarded a sum of Rs. 3,000/- for this purpose. In our opinion, this is inadequate and this was not seriously contested on the other side. We think a sum of Rs. 4,000/- will be required for it. Accordingly, a sum of Rs. 4,000/- will be set apart for the purpose. If the girl is already married, Defendants 2 to 4 are entitled to reimburse themselves out of the family properties. With this modification the appeal is dismissed. In the view we have taken regarding the blending and the right of the 1st Plaintiff to a higher share in regard to items 1 to 4 the memorandum of cross-objections filed on behalf of the Plaintiffs has to be allowed.

Coming on to A. S. No. 63 of 1951, the circumstances under which the suit was filed have already been set out. The chief question that falls; for determination in this case is whether the; Plaintiffs are entitled to the relief of partition in, view of the earlier division evidenced by Ex. A-3. It is convenient to refer to the averments in the plaint before we advert to the evidence and! the principles of law that govern the matter. The relevant passage in the plaint may be extracted:

While the Plaintiffs'' father and Defendants, were enjoying their properties jointly, a fraudulent partition deed was brought into existence between, the Defendants on or about 12th August 1948 by which the Plaintiffs'' father Is alleged to have become separated from the Ors. by taking only a small portion of the family properties worth about Rs. 20,000/-. The Plaintiffs were minors at the date of the alleged partition and they were not represented by any guardian. Their interests have been seriously prejudiced as their right; were not properly dealt with. The interest of their father were adverse to that of the Plaintiff.

The effect of the will of late Venkatakondareddy and the right of the Plaintiffs therein were disregarded at the alleged partition and even, the earlier compromise decree was ignored. All the family properties were not dealt with at the alleged partition. The family houses, movables, outstanding, grain, cash, etc., were not even dealt with. The rights of the third Defendant were ignored. The document seems to have been fraudulently brought into existence to deprive the Plaintiffs and Ors. of their legitimate share of the family properties and the Plaintiffs ignore the said document and demand their rightful share of the suit properties to be partitioned separately and given to them. All the family properties are even now being managed by the fifth Defendant as manager and the alleged partition deed never came into effect or operation.

It is not clear from these recitals whether the transaction is attacked as a fraudulent or as a normal one. However, the trend of the plaint seems to be that the partition was of the former kind. This means that the division was a real one. That being so, the only appropriate remedy was to as? for a re-partition of the properties. Curiously enough, there is no such prayer in the plaint. Assuming such a relief could be inferred from the circumstance that the Plaintiff asked for a partition of the whole family properties there docs not seem to be any warrant for awarding such a relief.

When once a partition is effected, it is final and can be re-opened only under certain special conditions such as when there was a fraud resulting in unfair or unequal distribution or it was prejudicial to the interests of a minor coparcener or when it took place in the absence of an adult coparcener or for other allied causes. An exhaustive list of the conditions need not be attempted here.

Apart from the vague allegations that the interests of the Plaintiffs have been seriously prejudiced as their rights were not properly dealt with and their interests were adverse to those of the .father, it was not stated definitely that it was an unfair or unequal partition. We do not find any basis for reopening the partition even in the evidence. First of all, it is not shown that the father was in any way inimically disposed towards his sons and was intent upon ruining them. The 1st Plaintiff who is examined as D. W. 1 had to admit that there was no enmity between their father and themselves, and that the former was maintaining them and their mother.

There is not a whisper either in his testimony or in that of P. W. 1 that the father was acting collusively with his brOrs. in order to defraud his sons. There is no suggestion that the father was of a weak intellect and was not one who could take care of his own interests. It is in evidence that till 1948 he was acting as the manager of the Joint family. That being so, there is no conceivable reason why he should have taken a smaller 6hare than that to. which he was entitled or that he was imposed upon by the other members.

If he did not demand and take a bigger share in respect of the properties forming the subject matter of Ex. A-2 it might be due to equitable consideration. This matter need not detain us any longer in the absence of any material suggestive of acting adversely to his minor children. It is certainly open to a father to have a partition effected on his own behalf and that of his children and the sons cannot'' attack it except on the grounds mentioned above The Plaintiffs in this case have not succeeded in making out a case for reopening the partition once effected.

Notwithstanding this, the Plaintiffs are entitled to some relief in respect of the properties which admittedly were not brought into division in 1948. D. W. 2 has stated what those items are:

Items 6 to 8, 22, 28, 29 and 31 of the schedule-annexed to O. S. No. 111/49 and items 26 to 29 enumerated in the schedule to the other suit.

The omission to bring them into partition seems to have been the result of a mistake and could not be attributed to any fraudulent design. This could not be a ground for a re-partition. At the same time the right to have them divided is not lost to the children of Peda Venkata Reddy. The Plaintiffs are therefore entitled to a share in these properties.

Mr. Kuppuswamy for the Respondents argued that they would be entitled to have a l/4th share in the items that originally fell to the share of Peda Venkata Reddy under Ex. A-l and were bequeathed to the legatees and to a l/6th share in other properties. We do not think there is any basis for making any distinction and they will be entitled only to a l/6th share irrespective of whether they originally belonged to Butchikopdareddy or Venkatakondareddy. The properties of an individual member obtained under a device from onej of the collaterals is his separate property.

That being so, it was competent for Peda Ven-katareddy to give up his larger rights and take an equal share therein along with other members of the family in respect of those properties. Therefore, no distinction could be made so far as the Plaintiffs are concerned between one set of properties or the other and they would only get a l/6th shave in the items mentioned above. For these reasons, his memo of cross-objections has to be dismissed. The parties will bear their own costs throughout.

So far as A. S. No. 64/51 is concerned., the costs of the parties both here and in the Court below will come out of the estate. The costs in the memorandum of cross-objections also will be governed by the order pronounced above.