NALLASWAMI GOUNDER Vs. SMT. KAMAKSHI AMMAL AND OTHERS

JUDGEMENT

(1.) One Rayappa Gounder had three wives. The first wife died issueless. The defendants are the son and daughter of his second wife. He had also another daughter Pavayee by his second wife. The first plaintiff is his third wife, and plaintiffs 2 and 3 are her sons. On 7th July, 1943, the first defendant executed a release deed Ex. A -1 in favour of his father relinquishing all his rights in the family properties, both ancestral and separate. On 1st November, 1943, Rayappa executed a settlement deed Ex. A -5 settling the suit property is favour of Pavayee. That document provided that Pavayee was to enjoy the property for life, and, after her life time, it should be taken by her children, and should she die issueless, the property would revert back to Rayappa and his heirs. Rayappa died in 1952 and Pavayee died issueless in 1960. The suit relates to the property so settled by Rayappa on Pavayee. The plaintiffs claim that on Pavayee's death, the suit property reverted to the joint family of which Rayappa and the plaintiff were members and therefore, they alone were entitled to a share. The defendants contend that it became a separate property of Rayappa and, therefore, they also had a share. Curiously enough, the plaintiffs accepted the second defendant's right to a share but not the first defendant's. The learned District Munsif took the view that the property became the separate property of Rayappa on Pavayee's death and therefore the plaintiffs as well as the defendants are entitled to a share in the property. The learned Subordinate Judge, on appeal, has taken a contrary view. I am satisfied that the view taken by the lower appellate court is correct. The effect of the release deed executed by the first defendant is that he became separated from the joint family of which he and his father Rayappa were coparceners. Though at that time Rayappa bad no children ether than the first defendant and the second and third plaintiffs were born later, they became members of a joint family along with Rayappa and the property in the hands of Rayappa after the release by first defendant became joint family property in which plaintiffs 2 and 3 had a right by birth. The share in the ancestral estate which a coparcener gets on partition with his co -sharers in his separate property as against the coparceners from whom he separates, though as against his own male issue who are born after partition or who were born before but who do not get themselves separated from him the property has still the character of ancestral property in which they take an interest by birth. That question however does not arise in this case because, the dispute is not in regard to the property which Rayappa got, but only with regard to the property which Rayappa gave Pavayee. It has been held that where ancestral property is given to a widow for maintenance and it reverted to the family after her death, it retains its character as ancestral property, and the result will be the same even where that property is allotted to her for her share in a partition in her husband's family. (See the decision in Mangal Prasad Singh v/s. Mahadeo Prasad, 22 M.L.J. 462. The present, of course, is not the case of a property given to a widow for maintenance, but still the principle would seem to apply. The criterion primarily is whether originally the property in question was ancestral property. In Sureschandra jagatram v/s. Bai Iswari : A.I.R. 1938 Bom. 206, it has been held that where ancestral property has been reduced to the sole ownership of a person by his adverse possession against his coparceners that property still retains its ancestral character so as to let in the right by birth in that property to his own sons. It has also been held that all properties acquired either with the income of ancestral property or the proceeds of sale of such property or with the aid of ancestral property or which are accretions thereto or augmentations thereof will become joint family property in the hands of the acquirer (See N.R. Raghavachariar's Hindu Law, page 265). An acquisition made by an act detrimental to the interests of the joint family property becomes joint family property. Where a coparceners acquires property without detriment to the joint family estate and unaided by its funds, it becomes his separate property together with its income and purchase from such income.

(2.) Applying these two principles together that a property got even by a sole coparcener if it is one which he got from his paternal ancestor is ancestral property in respect of the issues, even though they were born after he became the sole coparcener and the other principle that only a property acquired without detriment to the joint family estate is his separate property, it would be obvious that where a joint family property is given to a person with the provision that it has to go back to the family under certain circumstances and it reverts to the family under those circumstance, it would still retain the character of joint family property. The learned District Munsif, was, therefore, not right in saying that the suit property became the absolute property of Pavayee and her heirs and the family of Rayappa had also no absolute interest in the property from the date of the execution of the settlement deed till the date of death of Pavayee. The properties settled on Pavayee were joint family properties and they retained a character of joint family properties when they reverted to the joint family on Pavayee's death without issue in 1960. The second appeal is, therefore, dismissed. But there will be no order as to costs.