NAGAPPA Vs. MAHADEVAPPA

JUDGEMENT

(1.) The plaintiff respondent filed a suit for partition and possession of his share of the plaint schedule property on the ground that, it is the joint family property of himself, his brother, Defendant 6, and their father Defendant 5. The concurrent finding of the Courts below that the property is the ancestral property of Defendant 5 was not disputed before me. The property was hypothecated for discharging previous debts one of which was a debt due on a promissory note. There is absolutely no evidence, to show that the debts due by the 5th defendant were contracted for any necessity or purposes binding on the joint family. It has therefore to-be stated that the hypothecation was binding only on such interest as the 5th defendant had at the time the hypothecation deed was executed. At that time the plaintiff had not been born. The only coparceners of the joint family were Defendant 5 and his son Defendant G. The plaintiff was born on 8-8-1928. Defendants 5 and 6 sold away the entire property to the first defendant in order to discharge the debt due on the hypothecation deed. Though the sale is binding on such interest as Defendant 6 had in the property at the time of the sale, it cannot be said that the sale is binding on such interest in the property as the plaintiff had then. The learned Munsiff has passed a decree for partition of the plaint schedule property and directed that the plaintiff be put in possession of 1/3rd share. The judgment and decree of the learned Munsiff have been confirmed by the learned Subordinate Judge. Though the point has not been specifically raised in the appeal memo it has to be noticed that the Courts below were wrong in holding that the plaintiff is entitled to 1/3rd share, as in law the plaintiff is entitled to something less than that. As observed in the case reported in --'B. K. Gurumurthiah v. Seetharamaiya', 19 Mys LJ 310 :

(2.) In this case it will be noticed that Defendant 5 had hypothecated the property before the plaintiff was born. At that time he had half interest in the property as already observed. The plaintiff who was born later cannot question the alienation in respect of the half share. As the debt contracted was not for legal necessity it has to be stated that half share of defendant 6 was not bound by the hypothecation. It is at this stage that the plaintiff was born. The fact that both the Courts below have passed a decree enabling plaintiff to get 1/3 share in the property and the fact that this has not been specifically raised in this appeal shows that it is not clear what share an unborn son gets in a property hypothecated by the manager of the family for a purpose not binding on the other coparceners of the family. The point deserves therefore some careful examination.

(3.) In the case of a joint Hindu family, a coparcener gets an interest in the joint family property as it stands at the time of his birth. Therefore, the plaintiff was entitled to one third share in the right to redeem the half share of defendant 5, which was liable to be proceeded against for the hypothecation debt. He was also entitled to a share in the other half of the property which was not liable to be proceeded against for the hypothecation debt. Subsequent sale by defendants 5 and 6 of the entire property does not affect such interest as the plaintiff had jat the time of the sale, while the alienation is good to the extent of the interest of Defendants 5 and 6.