SMELAGIRIYAPPA Vs. LALITHAMMA

JUDGEMENT

(1.) This is an appeal by the four defendants in Original Suit No. 11 of 1953 on the file of the Court of the District Judge of Bangalore, directed against the decree passed therein for partition of family properties. The plaintiff Lalithamma filed the suit claiming her share to which she was entitled under Clause (d) of Sub-section (1) of section 8 of the Hindu Law Women's "Rights Act, Mysore Act X of 1933. The plaintiffs husband Hanumiah and the 1st defendant Malugiriappa are sons of one Settappa. They had another brother called Arasappa. The three brothers were living together as members of a joint Hindu family governed By Mitakshara Law. Arasappa took his share and left the family on the 28th Match, 1938, on which date he executed what is described in the evidence as a release deed, Ex. P-l; he appears to have taken a house and certain minor items as and for his share. Thereafter the two brothers Hanumiah and Melugiriappa continued undivided, Hanumiah died issueless in September, 1943. The result was that the joint family property passed to Melugiriappa as sole surviving coparcener subject to the right to share therein of Lalithamma, the plaintiff. In the plaint, the plaintiff asks for partition and delivery to her of a l/4th share in the properties set out in schedules A and C attached to the plaint. "C" schedule merely states "family moveables list separately attached." No such list was at all attached. No evidence as to existence of family moveables was let in. The plaintiff's claim thereto was therefore rejected. This finding is not questioned. In schedule "B" to the plaint, the plaintiff set out three items of Jewellery of a total value of Rs. 1,500/-with respect to which her claim as stated in para 5 of the plaint was that the jewels were her own Stridhana property and had been pledged by her husband and the 1st defendant for raising Capital for family business and that the 1st defendant was liable to return these jewels or their value. On the evidence the lower Court found that the plaintiff did not substantiate her claim to these jewels and hence it rejected her claim in respect of the same. This finding also is not questioned before us. Hence we may leave out of account both the schedules 'B' and 'C' of the plaint. "A" schedule sets out three items of immoveable property and the 4th item is described as "Family business in shop premises No. 111, New Tharagupet, Bangalore City". Regarding this family business the lower court held that the actual business that the first defendant was carrying on at the time of the partition suit and for sometime prior thereto was merely in the nature of commission business and that there were no assets of the business available for partition. No share therefore in that business was allowed to the plaintiff. In her memorandum of cross-objections the plaintiff has attacked] this finding and has claimed a share in the said alleged family business. The first item in "A" schedule is a house in Rangaswamy Temple Street, Bangalore City, the 2nd item another house in Sannakambli Kurubarpet in Kailari Road, Bangalore City and the third item another house in Kilari Road, Bangalore City. The first item stands sold to the 3rd defendant under Ex-D-15 dated the 6th of January 1946 for Rs. 8,500 executed by the 1st defendant. The 2nd item similarly stands sold to the 2nd defendant (who is the wife of Arasappa, the brother of plaintiff's husband and the 1st defendant Melugiriappa) for Rs. 6,000/- under Ex. III dated the l0th January 1949 executed by the 1st defendant. The third item stands mortgaged with possession to the 4th defendant for RS. 4,000/- under Ex. D-12 dated the 23rd July 1951 executed by the 1st defendant. In regard to these alienations the case of the plaintiff is that they had been executed fraudulently and collusively in order to deprive the plaintiff of her legitimate share and that they are not for any legal necessity or family benefit. She therefore claims that they do not bind her share in the properties which she is entitled to get free from those alienations. On the question of fact as to necessity, the lower court found that the alienation of the 1st item under Ex. D-15 was fully supported by legal necessity but that the other two alienations were not so supported by legal necessity. As a matter of law, however, the lower court held that the sole surviving coparcener had no right to alienate the share of the widow of a deceased coparcener even for legal necessity and that therefore the plaintiff was entitled to her share in these properties free from the alienations. At the same time the learned Judge held that "it was but right that the plaintiff should pay her proportionate share" of such of the debts as hack been found to be for necessity and binding on the family. He also held that the 1st defendant in respect of the third item and the alienees in respect of each of the other two items had effected certain improvements in the properties in their respective possession and directed that the plaintiff should bear her proportionate share of the expenses of the improvements. The result was that the plaintiff was given a decree for partition of 1/4 share in items 1 to 3 of the plaint "A" schedule subject to the condition that before she takes possession of her share she should pay 1/4 of Rs. 9500/- (debt Rs. 8500/- plus improvement Rs. l,000/-) in respect of the first item to the third defendant, 1/4 of Rs. 4,300/- (debt of Rs. 2,300/- plus improvement Rs. 2,000/-) in respect of item No. 2 to the 2nd defendant and 1/4" of Rs. 2,687/- (debt Rs. 687/- plus improvement Rs. 2,000/-) in respect of the third item to the 1st defendant. In the appeal the defendants contend as a matter of fact that all these alienations were for legal necessity binding on the family and therefore on the share of the plaintiff and as a matter of law she was not entitled to impeach these alienations. In her memorandum of Cross-objections the plain tiff questions the propriety of the decree asking her to pay 1/4 of Rs. 1000/- said to have been spent for improvements of the 1st item and to pay a 1/4 share of the debts and improvements in respect of the other two items.

(2.) The questions for consideration therefore in this appeal are (1) whether the 1st defendant, the sole surviving coparcener, had the right or power to alienate the suit properties for alleged legal necessity of the family, (2) whether the plaintiff has the right under law to impeach alienations made by the 1st defendant, the sole surviving coparcener, (3) if the answer to the first two questions is in the affirmative, whether the alienations under Ex. D-15, Exs. III and D-12 are supported by legal necessity, (4) whether the plaintiff is liable to meet her share of such of the debts as are found to have been incurred for legal necessity binding on the family, (5) whether the plaintiff is liable to pay her proportionate share of the amounts said to have been spent on improvements to the Suit properties and (6) whether the business carried on by the 1st defendant is a joint family business in which the plaintiff is entitled to a share and, if so, whether there are any assets of that business liable to partition.

(3.) As the first two Questions raise questions of Jaw which go to the root of the matter upon the answers to which the remaining questions may or may not arise, it is proper that we should deal with these questions in the first instance.