KOKILA Vs. SWATHANTHIRA

JUDGEMENT

(1.) HINDU Law -Joint Family Property & Individual property -Property given under Will of Gift - Late A had gifted his properties absolutely to R and his son, the first defendant in the suit, cannot assert an equal right with that of the father since it is not an ancestral property in the hands of the father - If there are no clear words in the document of gift or will describing the kind of interest which the donee or legatee takes in the gift or will in the property given by the father, the question would be one of construction and the court will have to collect the intention of the donor from the language of the document taken along with the surrounding circumstances in accordance with the well known canons of construction - R got the property by a will not as member of a coparcenary and the property did not come to him as survivor of the coparcenary. He was enjoying the property as a tenant-in-common along with his brother. Thereafter, the same was divided in a partition and the property obtained by him in the partition is not obtained on the basis of his being a member of the HINDU joint family, but as an equal brother as joint tenant. Applying the facts and the law on the subject, it has to be held that there was no coparcenary consisting of late A and R and that the suit properties are the individual properties of R who died intestate. Par a 27, 29 & 33 (As per His Lordship Mr. Justice P. SHANMUGAM) HINDU Law -Joint Family Property & Individual property -Coparcener Property - Property given under Will of Gift - Since A and his sons were living as joint family, undoubtedly the above Properties assumed the character of coparcenary properties. The essential feature of ancestral property is clear from the fact that A and his sons were living together and have become joint owners. As coparceners / male members, his sons T and R have acquired share in the coparcenary property by birth. There is no material showing that the above Properties are the self acquired Properties of A -According to the MITAKSHARA, the son has a right by birth in his father's and grandfather's estate, but a distinction is made in this respect by Mitakshara itself. In the ancestral or grandfather's property in the hands of the father, the son has equal rights with his father; while in the self-acquired property of the father, his rights are unequal by reason of the father having an independent power over or predominant interest in the same. The son can assert an equal right with the father only when the grandfather's property has devolved upon his father and has become ancestral property in his hands. The property of the grandfather can normally vest in the father as ancestral property if and when the father inherits such property on the death of the grandfather or receives it, by partition, made by the grandfather himself during his lifetime. On both these occasions the grandfather's property comes to the father by virtue of the latter's legal right as a son or descendant of the former and consequently it becomes ancestral property in his hands - The will left by A not valid in the eye of law and that Will does not have the effect of destroying the right of survivorship. At the most, it could only be taken as a family arrangement without nullifying the coparcenary right and the right of survivorship of T and R - The Will executed by A in favour of his own sons would not in any way prevail upon the survivorship nor would take away the coparcenary character of the above Properties and other Properties bequeathed under Will - Only Section 30 of HINDU Succession Act abrogates the pre-existing hindu Law as regards testamentary disposition of undivided interest. Sec. 30 of hindu Succession Act, 1956 is prospective. It cannot validate the Will made by a, who died on 04. 12. 1918 - prior to coming into force of the Act. No doubt, the Will was probated in the High Court at Madras in O. P. 274/1919. It is settled law that a testamentary court whilst granting probate or letters of administration is only concerned with finding out whether or not the Testator executed the testamentary instrument of his free will. Probate of the Will is only to the effect that the testator was in a fit mental condition while making the testamentary disposition. Probate of the Will would not in any way validate that testamentary disposition which otherwise was prohibited under Mitakshara; nor does it take away the character of coparcenary property. Para 19, 21 & 22 (As per His Lordship Mr. Justice P. SHANMUGAM) HINDU Succession Act, 1956 -Section 6, 23 & 29-A-Claim of unmarried daughter - Equal to a son -Restriction on female Members with regard to Dwelling House - A legal fiction should not be extended beyond its avowed purpose. Moreover an unmarried daughter can under Sec. 29-A of the act claim right equal to a son in spite of specific devolution of interest in coparcenary properties as contained in Section 6 of the Act. But It does not exclude the operation of Sec. 23 of the Act also. Sec. 29-A of the Act is a deviation from Sec. 6 of the Act. But it cannot be said that special right given to son also is taken away in view of Sec. 29-A of the Act. Under Sec. 23 of the act also a daughter who is unmarried or has been deserted or has been separated from her husband or is a widow is entitled to a right of residence in the dwelling house. So, Sec. 29-A of the Act cannot be relied on in this case to rely on the restriction made under Sec. 23 of the Act on the female members to file a suit for partition with respect to the dwelling house as submitted by the learned counsel for the respondents. In view of the above, the trial court is not correct in rejecting the suit with respect to plaint'a'schedule property holding that on the date of suit the 1st defendant was alive and he died only subsequently - The judgment and decree dated 24. 4. 2002 made in o. S. No. 3053/1998 insofar as they relate to plaint'a'schedule property cannot be sustained and they are set aside, and, equally, the Cross Objection filed by defendants 2 and 5 cannot also be sustained. Hence the above appeal is allowed and the Cross Objection is dismissed. Para 24 & 25 (As per His Lordship Mr. Justice K. GOVINDARAJAN) Judgment :- After hearing both counsel on 05. 12. 2003, we have reserved the Appeal for judgment. During discussion on 09. 12. 2003, we have differed in our views and there was difference of opinion between us in the matter. Therefore, I have rendered my separate judgment giving reasonings after settingforth the pleadings and findings of the trial court and also the contentions of the parties. In this Appeal, I have also received two additional documents in CMP No. 10477/2003 as additional documents (Exs. B-10 and B-11) for the reasons set forth infra in the judgment. Per Mrs. R. Banumathi, J. This Appeal arises out of judgment and decree of VII additional Judge, City Civil Court , chennai in O. S. 3053/1998 dated 24. 04. 2002. Plaintiff is the Appellant. D2 and d5 have preferred the Cross Objection.

(2.) THE Appeal arises on these common grounds;- THE dispute relating to Suit Properties:- 'a'Schedule - residential house at No. 19, Mandaveli; 'b'Schedule - a Lodge bearing Door No. 9, Nallathambi mudali Street, Triplicane. Suit for Partition of 1/4th share of'a'and'b'Schedule property was decreed. However, finding that'a'schedule Property being the residential house, under Section 23 of Hindu Succession Act, the trial court postponed Plaintiff's claim of Partition.

(3.) ON the above pleadings, two issues were framed in the trial court. Parties adduced oral and documentary evidence. ON behalf of the plaintiff, P. W. 1, Natesa Mudaliar was examined. D2 / Swathanthira was examined as D. W. 1. Exs. A-1 and A-2 and B-1 to B-9 were marked. Upon consideration of the evidence, trial court passed Preliminary Decree for Partition of 1/4th share on the following findings,- (i) that the Defendants have not proved'a'Schedule property purchased from out of joint family funds and that'a'schedule property is the self acquired Property of Rathina Sabapathy Mudaliar; (ii) Plaintiff being married daughter and D1 - the son and D2 - the unmarried daughter, and'a'Schedule Property being the residential house, deferred the Partition of'a'Schedule house under Section 23 of Hindu Succession Act; (iii) that there is nothing to correlate that'b' schedule Property in Triplicane was purchased from out of the sale proceeds of the ancestral Property i. e. Door No. 17, Taylors Road. ON the above findings, the Trial Court passed the preliminary decree for Partition. However, the trial Court postponed the division of the residential house in Mandaveli -'a'Schedule Property.