KUNJANNA GURUKKAL AND ORS. Vs. MANGALATHAMMAL

JUDGEMENT

(1.) The Defendants in a suit for partition, filed by the widow of a Hindu coparcener claiming her interest in the joint family properties, have preferred this second appeal. The deceased coparcener, Pattu Gurukkal, was the younger brother of the first Defendant. He died on 9th July, 1959 issueless, leaving surviving himself, his widow, the Plaintiff in the suit. The brothers were undivided and the suit properties admittedly belong to the joint family of the two brothers. Defendants 2 and 3 in suit are the undivided sons of the 1st Defendant. The 4th Defendant in the suit is the alienee of A schedule property under a sale deed exhibit B -10, dated 15th September 1960, executed by the first Defendant along with his sons Defendants 2 and 3 for a consideration of Rs. 1,200. Except for a sum of Rs. 352 -75, cash paid, the balance of the consideration, it is said, went in discharge of antecedent debts, some of them incurred prior to the death of Pattu Gurukkal and some of them, after his death in connection with the obsequies. The principal question for consideration in this second appeal is whether this alienation, which the 1st Defendant purported to make as the manager of the joint family would bind the interest of the Plaintiff, the widow of the deceased coparcener.

(2.) The Courts below find that the sale in favour of the 4th Defendant is a perfectly bona fide transaction and for proper price. As regards the debts incurred prior to the death of Pattu Gurukkal, the finding is that they were all debts properly incurred and binding on the joint family -debts incurred for repairs to the family house, debts incurred for medical expenses of the deceased Pattu Gurukkal, etc. The remaining debts were debts incurred, as set out above, for funeral expenses of the deceased. Moneys were, borrowed for the same on promissory notes by the 1st Defendant and articles purchased on credit from shops. Holding that, even though the debts might have been properly incurred, in view of the several provisions of the Hindu Succession Act, the 1st Defendant had no authority to alienate the widow's interest in the A schedule property, the Courts below have directed partition and possession to the Plaintiff of a half share in the family properties inclusive of the alienated property. However, to the extent of a half share in the debts, incurred prior to the death of Pattu Gurukkal, the Plaintiff has been directed to pay the same to the 4th Defendant, making her share in the alienated property a charge for the amount. As the consideration for the alienation has failed in respect of a half share, the 1st Defendant has been made liable to the 4th Defendant for half the consideration, namely, for a sum of Rs. 600 less the amount which the Plaintiff has been directed to pay the alienee. All the Defendants join in preferring the second appeal.

(3.) Mr. K.S. Naidu for the Appellants contended that the alienation being for binding debts, should bind the widow also. It was submitted that, till the actual partition by metes and bounds, the 1st Defendant as manager of the joint family could alienate even the widow's share in the properties for binding purposes. In support of his contention, reliance was placed by learned Counsel on the decisions under the Hindu Women's Rights to Property Act (XVIII of 1937). Emphasis was laid on the fact that, under the said Act also, a widow, subject to the proviso that she took a limited estate, had the same interest as her husband had and that the decisions have uniformly held that the widow continued to be a member of the joint family and the interest which she had of her husband's was subject to all the incidents of joint family property. Only on partition, learned Counsel contended, the manager of the joint family ceased to exercise powers over the same, and, in case the widow asked for partition, her husband's interest would be worked out, having regard to the circumstances obtaining in the family on the date of partition. But the decisions under Act XVIII of 1937, are of little help in the construction of Hindu Succession Act of 1955. (Under Act XVIII of 1937, on the death of the husband the statutory devolution on the widow, of her husband's interest in the joint family property did not ipso facto result in separation of that interest from the joint family property. The widow can continue to be a member of the joint family till she chose to claim partition). As pointed out in Satrudhan v/s. Sabujpari : A.I.R. 1967 S.C. 272, 274, 275 the widow was introduced into the coparcener by the Act, though she was not made a coparcener. The Supreme Court says: