In the High Court of Judicature at Madras
Dated:27.04.2011
Coram:
The Honourable Mr. Justice R.SUBBIAH
Second Appeal No.319 of 2007
1. B.Nalina
2. B.Renuka
rep.by Power of Attorney Agent
R.Balasubramanian ..Appellants
..vs..
1. Arumugam
2. M.Mani
3. Vinayagam
4. Sakunthala
5. Vasantha Ammal
6. Rajeswari
7. Radha Ammal
8. Prema Ammal
9. Vimala Ammal
10.Kamalam Ammal
11.Anandakrishnan
12.M.Sivakumar
13.A.Baskaran ..Respondents
Second Appeal under section 100 of Civil Procedure Code filed, against the judgment and decree dated 06.03.2006 made in A.S.No.64 of 2005 on the file of Principal District Judge, Cuddalore, confirming the judgment and decree dated 22.03.2005 in O.S.No.211 of 2003 on the file of Principal Subordinate Judge, Cuddalore.
For Appellants : Mr.Hema Sampath, Senior Counsel for
Ms.R.Meenal
For Respondents : Mr.T.R.Rajagopalan, Senior Counsel
for Mr.T.R.Rajaraman for R2 to R11
JUDGMENT
The Second Appeal is directed against the judgment and decree dated 06.03.2006 passed by the learned Principal District Judge, Cuddalore, in A.S.No.64 of 2005, whereby the judgment and decree passed by the learned Principal Subordinate Judge, Cuddalore, dated 22.03.2005 in O.S.No.211 of 2003, were confirmed.
2. The plaintiffs are the appellants and the defendants are the respondents. For convenience, the parties would be referred to as in their rank in O.S.No.211 of 2003.
3. The plaintiffs filed the suit for the following reliefs;
"(1) to declare that the decree passed in O.S.No.22 of 2003 on the file of the First Additional Sub Court, Cuddalore, is not valid and binding upon the plaintiffs with respect of their 2/40th share;
(2) to pass a preliminary decree for partition and separate possession of plaintiffs' 2/40th share each in suit 'A' schedule properties and 1/4th share each in suit B schedule properties;
(3) an Advocate Commissioner may be appointed to divide the properties by metes and bounds in the final decree proceedings;
(4) direct enquiry into future and past accounts for income from the suit properties; and
(5) award costs of the suit".
4. The parties are related as under:-
Muthukumarasamy
(died on 01.03.2002)
= Kamalam Ammal(wife D10)
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Son Son Son (..........Daughters................)
D1 D2 D3 D4 D5 D6 D7 D8 D9
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| Son Son
| D-11 D-12
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Son Daughter Daughter
D-13 1st Plaintiff 2nd Plaintiff
It is the case of the plaintiffs that suit A and B schedule properties were the ancestral joint family properties of their grandfather Muthukumarasamy Chettiar and his children. In partition, suit 'A' schedule properties were allotted to their grandfather, (father of defendants 1 to 9) and B schedule properties were allotted to their father (1st defendant) under the registered partition deeds dated 05.07.1974 and 31.07.1983. The 1st plaintiff got married in 1996 and the 2nd plaintiff got married in 1999. Since the plaintiffs' marriage took place after the commencement of the Amendment to the Hindu Succession Act, they are deemed to be coparceners in the family properties and hence, the plaintiffs are entitled to each 1/40th share in 'A' schedule properties and 1/4th share in B schedule properties. After the demise of their grandfather, the 3rd defendant Vinayagam filed a suit for partition against defendants 1 and 2 and 4 to 11 to pass a preliminary decree for partition and separate possession of the properties of his father, in O.S.No.22 of 2003 before the Sub Court, Cuddalore and in which, the defendants colluded themselves and entered into a compromise and pursuant to which, a compromise decree was passed on 07.02.2003. In the said suit, the plaintiffs and their brother were not parties. On a perusal of the said compromise decree, the plaintiffs came to know that their father has not reserved himself any share in 'A' schedule properties, which is against law and justice. The plaintiffs, being coparceners, are entitled to their respective share and the father cannot relinquish or gift his share allotted to his branch, without concurrence of the plaintiffs and as such, the compromise decree is not binding on them. From the proceedings of the said suit, the plaintiffs further came to know that their grandfather executed a Will and the same was registered at Chennai in spite of the fact that the properties were situated in and around Cuddalore, which create grave suspicion about the genuineness of the Will. Further, the value of the properties in the compromise decree, was given a lesser value though they worth about crores of rupees. The plaintiffs, who are deemed to be coparceners as per the amendment to the Hindu Succession Act, are entitled for a share in the properties of their grandfather. Their father has no right to relinquish his right in the 'A' schedule properties. Hence, they filed the suit for the reliefs stated supra.
5. The 1st defendant, father of the plaintiffs, filed a written statement, adopted by the 13th defendant, admitting the case of the plaintiffs about the allotment of 'A' schedule properties and B schedule properties in the partition and that the plaintiffs are the coparceners since their marriage took place subsequent to the commencement of the Hindu Succession (Tamil Nadu) Amendment, Act, 1989. The only denial of the 1st defendant is that he has not colluded with the other defendants while entering into a compromise in O.S.No.22 of 2003.
6. The 2nd defendant filed a written statement, admitting the two partition deeds and allotment of A and B schedule properties to his father and his brother/the 1st defendant (the plaintiffs' father) respectively and stated that after partition and allotment of 'A' schedule properties to his father, there was no joint family coparcenary and the properties allotted to his father are his separate properties. As such, the 1st defendant has no right in the 'A' schedule properties and when that being so, the plaintiffs also have no right over the same. His father Muthukumarasamy did not die intestate and he executed a registered Will dated 16.08.1983 and it was deposited by him in the office of the Sub-Registrar-South, Madras and was registered under sections 42, 43 and 45 of the Registration Act. It is the further case of the 2nd defendant that his father Muthukumarasamy Chettiar belonged to a reputed and leading merchant family at Cuddalore. The 1st defendant, even prior to the partition in 1983, went out of the family in 1981 itself and there was no cordial relationship between them because of the 1st defendant's conduct. One Kannan Chettiar represented the 1st defendant and one Subbaraya Chettiar represented Muthukumarasamy Chettiar and others and they acted as Arbitrators and divided the properties as per the registered partition deed dated 31.07.1983.
7. Muthukumarasamy Chettiar was running a theatre under a name Kamalam Theater, for which, he visited Chennai frequently and one P.S.Ramachandran, Advocate was his family Advocate and after consultation with him, he executed the Will dated 16.08.1983 and it was written by one Gopal Pillai and the said Advocate signed as one of the attesting witnesses and the Will was kept in secret. In the year 1990, when Muthukumarasamy Chettiar was admitted in Vijaya Hospital, Chennai for eye cataract operation, he suffered heart problem and as such, the eye operation was stopped and he was given treatment for his heart problem. Only at that time, Muthukumarasamy Chettiar disclosed the execution of the Will and this defendant also came to know about this for the first time. After the death of his father only, the cover was opened and the Will was registered on 22.04.2002 and thereafter, the contents of the Will was disclosed to all the family members. Since the 3rd defendant and other daughters of Muthukumarasamy agitated that there was no provision for them in the Will, O.S.No.22 of 2003 had been filed by the 3rd defendant for partition. Subsequently, there was a panchayat in the presence of one Venugopal, one of the sons-in-law of Muthumukumarasamy Chettiar and there was a compromise and pursuant to which, a compromise decree was passed on 07.02.2003. Since the plaintiffs (the grand-daughters of Muthukumarasamy Chettiar and the daughters of the 1st defendant) are not sharers, they are not entitled to question the compromise decree. In the compromise, the 1st defendant has given up his right for cash consideration and has also received extra consideration and has given a receipt for the same, which was attested by the 13th defendant. Even for the arguments' sake that Muthukumarasamy Chettiar died intestate, since he died after commencement of the Hindu Succession Act, the plaintiffs are not the class-I heirs of Muthukumarasamy Chettiar and they are not entitled to get any share in respect of 'A' schedule properties. So far as B schedule properties, defendants 2 to 12 are not the necessary parties and as such, the suit is bad for mis-joinder of cause of action. Hence, the suit is liable to be dismissed.
8. On the said pleadings, the trial court framed necessary issues and on the side of the plaintiffs, the power of attorney agent of the plaintiffs was examined as P.W.1 and four documents were marked as Exs.A-1 to A-4 and on the side of the defendants, the 2nd defendant examined himself as D.W.1 besides examining two other witnesses as D.Ws.2 and 3 and marked Exs.B-1 to B-5. The trial court, after considering the entire evidence on record, both oral and documentary, had dismissed the relief of declaration and partition in respect of 'A' schedule properties and passed a preliminary decree for partition and separate possession of their 2/4th share in respect of B schedule properties. Challenging the said finding, the plaintiffs filed A.S.No.64 of 2005 on the file of District Court, Cuddalore, wherein the appeal was dismissed by confirming the judgment and decree of the trial court. Against which, the plaintiffs filed the present second appeal.
9. At the time of admission of the second appeal, this Court has framed the following substantial questions of law for consideration:
(1) Whether the Courts below are right in failing to see that under the Tamil Nadu (Amendment) Act 1 of 1990 females who were not marked on the date of amendment were entitled to a share as the daughter of a co-parcener in her own right and in the same manner as the son ?
(2) Whether in law the Courts below are right in concluding that the compromise decree in O.S.No.22/2003 before the I Additional Sub Court, Cuddalore was binding on the appellants, when the appellants were not parties to the suit and their father had scarified their interests ?
10. Learned Senior Counsel for the plaintiffs (appellants) submitted that the suit properties are the ancestral properties of the plaintiffs' (appellants) grandfather Muthukumarasamy Chettiar, the father of defendants 1 to 9. By way of two partition deeds dated 05.07.1974 and 31.07.1983, the properties were partitioned between Muthukumarasamy Chettiar and his children, in which 'A' schedule properties were allotted to Muthukumarasamy Chettiar and B schedule properties were allotted to the share of the 1st defendant. Since the properties are the ancestral joint family properties, the plaintiffs, who are the grandchildren of the said Muthukumarasamy Chettiar, are entitled to each 1/40th share in 'A' schedule properties (the properties allotted to grandfather Muthukumarasamy Chettiar) and 1/4th share in B schedule properties (the properties allotted to father, the 1st defendant). Further, in a compromise decree passed in O.S.No.22 of 2003 i.e.the suit filed by the 3rd defendant Vinayagam against the other defendants, the father of the plaintiffs has no right to relinquish the right of the plaintiffs in 'A' schedule properties since the properties are ancestral in nature. The learned senior counsel further submitted that the present suit was filed within six months from the date of compromise decree passed in O.S.No.22 of 2003. Admittedly, the plaintiffs got married after 1989 i.e.after the amendment made to the Hindu Succession Act. Hence, as per the amended Act, they are deemed to be the co-parceners in the joint family properties and the plaintiffs will automatically become the co-parceners along with their grandfather. But the courts below, without properly considering these legal aspects, came to the conclusion that after partition, 'A' schedule properties have become the separate properties of Muthukumarasamy Chettiar and hence, it will devolve only on class I heirs i.e.defendants 1 to 9 and dismissed the suit.
11. Attacking one of the reasons assigned by the courts below for rejecting the case of the plaintiffs that in the Will dated 16.08.1983, Muthukumarasamy Chettiar has not made any provision to the 1st defendant and some other defendants and that is why in a compromise decree, by accepting Rs.3 lakhs, the 1st defendant has relinquished his right in the 'A' schedule properties, the learned senior counsel for the plaintiffs would submit that the said Will was not proved before the trial court and as such, it has never acted upon and under such circumstances, the said reason assigned by the courts below cannot be accepted. Further, the finding of the courts below that the compromise decree was accepted by the 1st defendant as the Kartha of the family and, therefore, the compromise decree will bind on the plaintiffs, is not correct because the compromise decree was signed by the 1st defendant not in the capacity of the Kartha of the family, whereas it was signed only in his individual capacity. In support of her submissions, the learned senior counsel has relied on the decisions reported in SIVARAMAKRISHNAN ..vs.. KAVERI AMMAL (AIR 1955 MADRAS 705), NARENDRANATH ..vs.. COMMISSIONER OF WEALTH-TAX, ANDHRA PRADESH (1969 (II) MLJ 99) and M.SHANMUGHA UDAYAR ..vs.. SIVANANDAM AND OTHERS (AIR 1994 MADRAS 123).
12. Combating the submissions made by the learned senior counsel for the plaintiffs, the learned senior counsel for defendants 2 to 11 would submit that the original character of the properties was ancestral in nature, but after partition, there is a division in co-parcenary. Since there was a disruption in the co-parcenary, the properties allotted to Muthukumarasamy Chettiar have become his separate properties. Once the co-parcenary has been split up, it will not continue as the co-parcenary properties. The contention of the plaintiffs that after partition, they have become the co-parcenars along with their grandfather is patently wrong because there cannot be two joint families in respect of the same properties. The learned senior counsel further submitted that the entire case has to be decided under section 8 of the Hindu Succession Act. Under section 8 of the Hindu Succession Act, the grand daughters will not come under class-I heirs. Therefore, after the demise of Muthukumarasamy Chettiar, only the class-I heirs i.e. defendants 1 to 9 are entitled to claim a share in the properties. In this regard, the learned senior counsel submitted that all the cases relied on by the learned senior counsel for the plaintiffs will not be applicable to the case on hand because in those cases, the nature of ancestral properties dealt with in consonance with class-I heirs. Further, the plaintiffs have filed the present suit only at the instigation of their father since he cannot seek for setting aside the compromise decree. Under such circumstances, the courts below have correctly dismissed the suit. In support of his contention, the learned senior counsel has relied on the decisions reported in ADDITIONAL COMMISSIONER OF INCOME TAX ..vs.. P.L.KARUPPAN CHETTIAR (AIR 1979 MAD 1 (FB), COMMISSIONER OF WEALTH TAX, KANPUR ..vs..CHANDER SEN AND OTHERS ((1986) 3 SCC 567), COMMISSIONER OF INCOME TAX ..vs.. P.L.KARUPPAN CHETTIAR (1993 SUPP (1) SCC 580), BHANWAR SINGH ..vs.. PURAN AND OTHERS ((2008) 3 SCC 87) and HARDEO RAI ..vs.. SAKUNTALA DEVI AND OTHERS ((2008) 7 SCC 46).
13. This Court has paid its anxious consideration on the submissions made by the learned counsel on either side and the only question to be decided is,
Whether the properties allotted to Muthukumarasamy Chettiar, after partition took place on 05.07.1974 and 31.07.1983, have continued as his ancestral properties or they are deemed to be his separate properties ?
because if the properties allotted to Muthukumarasamy Chettiar are ancestral properties, after partition, the plaintiffs, who are the grandchildren of Muthukumarasamy Chettiar, are entitled to a share as co-parceners since they got married after the amendment to the Hindu Succession Act and if they are separate properties, they are not entitled to claim any share.
14. The learned senior counsel for the plaintiffs, by inviting the attention of this Court to section 29-A(iii) of the Hindu Succession Act, 1956, submitted that there are equal rights to daughter in co-parcenary property. Further, she also invited the attention of this Court to Section 221 of Mulla's Hindu Law, which reads as follows:
"221. Ancestral Property:- (1) Property inherited from paternal ancestor:- All property inherited by a male Hindu from his father, father's father or father's father's father, is ancestral property. The essential feature of ancestral property according to Mitakshara law is that the sons, grandsons and great-grandsons of the person who inherits it, acquire an interest, and the rights attached to such property at the moment of their birth. Thus, if A inherits property, whether movable or immovable, from his father or father's father, or father's father's father, it is ancestral property, as regards his male issue. If A has no son, son's son, son's son's son in existence at the time when he inherits the property, he holds the property as absolute owner thereof, and he can deal with it as he pleases. However, if he has sons, sons' sons or sons' sons' sons in existence at the time, or if a son, son's son or son's son's son is born to him subsequently, they become entitled to an interest in it by the mere fact of their birth in the family, and A cannot claim to hold the property as absolute owner nor can he deal with the property as he likes. The position has been materially affected after S.8 of the Hindu Succession Act, 1956, came into force.
A father cannot change the character of the joint family property into absolute property of his son by merely marking a Will and bequeathing it or part of it to the sons if it was the self-acquired property of the father. In the hands of the son, the property will be ancestral property and the natural or adopted son of that son will take interest in it and be entitled to it by survivorship, as joint family property"
and submitted that a reading of this Section would reveal that even in the instant case it cannot be said that since partition deed has been executed between the parties, it would change the character of ancestral property. Since after the commencement of Amended Act, 1989, the unmarried daughters have also automatically become the co-parceners from the date of their birth. Hence, in the instant case, the plaintiffs are automatically entitled to a share from the 'A' schedule property allotted to Muthukumarasamy Chettiar under the partition deeds.
15. In this regard, it would be appropriate to refer the judgments relied on by the learned senior counsel for the plaintiffs. In AIR 1955 MADRAS 705 (supra), a Division Bench of this Court has held as follows:
"28. We might now summarise the effect of these several decisions.
1. Property obtained by a coparcener on partition is ancestral joint family property in which sons born or adopted subsequently have rights, notwithstanding that, at the date of the partition the dividing member was a sole coparcener.
2. A sole coparcener has absolute rights of alienating properties thus obtained by him on partition and subsequently born or adopted sons cannot question such alienations for the property has ceased to be family property at the date of their birth or adoption.
3. It follows that the income received by a sole coparcener from what might become joint family property on the mergence of a coparcener is till such date at the absolute disposal of such owner.
4. Where ancestral property is sold by a co-parcener and the sale proceeds are utilised for the acquisition of other property, either with or without self acquired funds, the property so acquired would partake of the character of ancestral property in which sons subsequently born or adopted would acquire coparcenary rights because such property has been acquired "by detriment to the paternal estate", the detriment being that the original property, which would have come to him but for the alienation, is not available at the subsequent date.
Apart from cases of such detriment, where from the income of ancestral property a sole coparcener makes purchases the only legal basis for imputing joint family character to the subsequent acquisitions is the theory of accretion which would be dependent upon the intention of the acquirer. In such cases the mere utilisation of any portion of the income from ancestral property would not 'ipso jure' render the acquisition part of the ancestral property in which a son subsequently born or adopted would acquire a right by birth.
5. In the present case though the money raised on the security of ancestral property was used for running a business which produced the profits out of which the acquisitions were made, there was "no detriment to the paternal estate", since long before the plaintiff was born the mortgages had been discharged so that the ancestral property was available to him when he was born. There was therefore no detriment to the interests of any co-parcener, nor can the subsequent acquisitions be treated as coparcenary property by recourse to the theory of accession or accretion for no evidence of such intention can be gathered from the purchases or from their dealing".
16. In AIR 1994 MAD 123 (supra), it has been observed as follows:
"19. But on a close scrutiny of the decision referred to above, we are of the view that the two cases are clearly distinguishable on one vital aspect. While the dispute relating to the character of the property in that case was between two brothers, in the present action it is between father and sons. In our view this makes all the difference. The law as it stood before coming into force of the Hindu Succession Act, 1956 is stated at page 248 of Mulla's Hindu Law, 1990 Edition in these terms: "The share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issues. They take an interest in it by birth, whether they are in existence at the time of partition or are born subsequently. Such share, however, is ancestral property only as regards his male issue. As regards other relations, it is separate property... where the share allotted to a coparcener on partition consists of property which is subject to a mortgage, the fact that he subsequently clears it from the mortgage by his own self-acquisitions, does not alter the character of the property. The unencumbered property still remains ancestral, and his male issue acquires interest in it by birth." So, though item 22 was earmarked and allotted in Ex.A-1 partition deed dated 11.7.1932 to the appellant for the purpose of discharging the family debts, the ancestral character of the property could not be converted into separate property by the terms of that partition deed. It was still property obtained by the appellant in a family partition and so joint family property vis-a-vis his sons. That that property was burdened with an obligation to discharge the debts cannot change the nature and character of property. Further we find from Ex.A-1 that the outstandings to be realised and debts to be discharged were more or less equal. There is nothing in the evidence of the appellant as D. W.5 to indicate that he salvaged the property without detriment to the joint family assets. While allotting suit items 1 to 25 in Ex.A-1, this item 22 was burdened with an obligation to discharge the debts. This allotment cannot in any sense be compared with the Managing Director's remuneration of a member of a joint Hindu family. So, we have no hesitation in holding that there is no difference between item 22 and other item allotted to the appellant in the family partition under Ex.A-1 dated 11.7.1932 regarding their character. And hence it is coparcenary property in which his sons have a right by birth".
17. In 1969(II) MLJ 99 SC (supra), the Hon'ble Supreme Court has observed as follows:
"Different considerations would be applicable, where property already impressed with the character of joint family property comes into the hands of a single coparcener. The question to be asked in such a case is whether the property retains the character of joint family property or whether it sheds the character of joint family property and becomes the absolute property of the single coparcener. In Commissioner of Income Tax v. Gomedalli Lakshminarayan ((1935) 3 I.T.R.367, the property was ancestral in the hands of the father and the son had acquired an interest in it by birth. There was a subsisting Hindu Undivided Family during the life-time of the father and that family did not come to an end on his death. On these facts, the Bombay High Court held that the income received from the property was liable to super-tax as the income of the Hindu Undivided Family in the hands of the son who was the sole surviving male member of the Hindu Undivided Family in the year of assessment. The reasoning was that the property from which income accrued originally belonged to a Hindu Undivided Family and on the death of the father it did not cease to be property of that Hindu Undivided Family but continued to belong to that Hindu Undivided Family and its income in the hands of the son was, therefore, assessable as income of the Hindu Undivided Family. There was a vital distinction between the facts of this case and the facts in Kalyanjis case ((1937) 5 I.T.R.90). This distinction was not noticed by the Judicial Committee in Kalyanji s case when it observed that the Bombay High Court "arrived too readily at the conclusion that the income was the income of the family". When Gomedalli s case was carried on appeal the Judicial Committee once again failed to notice the distinction and wrongly reversed the decision of the Bombay High Court holding that the facts of the case were not materially different from the facts in Kalyanji s case".
18. A perusal of the said decisions would show that they are dealing with the entitlement of the co-sharers in the ancestral properties along with their grandfather. Absolutely, there is no quarrel in accepting the proposition that the co-parceners are entitled to a share in the ancestral properties; but in the instant case, that is not the question. The issue to be decided is, whether the properties allotted to the share of Muthukumarasamy Chettiar in the partition deeds will continue as ancestral properties after partition or separate properties. At this stage, an useful reference could be placed upon the judgments relied on by the defendants.
19. In (1986) 3 SCC 567 (supra), the Hon'ble Apex Court has held as follows:
"15. It is clear that under the Hindu Law, the moment a son is born, he gets a share in the father's property and becomes part of the coparcenary. His right accrues to him not on the death of the father or inheritance from the father but with the very fact of his birth. Normally, therefore whenever the father gets a property from whatever source from the grandfather or from any other source, be it separated property or not, his son should have a share in that and it will become part of the joint Hindu family of his son and grandson and other members who form joint Hindu family with him. But the question is : is the position affected by Section 8 of the Hindu Succession Act, 1956 and if so, how? The basic argument is that Section 8 indicates the heirs in respect of certain property and Class I of the heirs includes the son but not the grandson. It includes, however, the son of the predeceased son. It is this position which has mainly induced the Allahabad High Court in the two judgments, we have noticed to take the view that the income from the assets inherited by son from his father from whom he has separated by partition can be assessed as income of the son individually. Under Section 8 of the Hindu Succession Act, 1956 the property of the father who dies intestate devolves on his son in his individual capacity and not as karta of his own family. On the other hand, the Gujarat High Court has taken the contrary view.
16. In CIT v. Babubhai Mansukhbhai ((1977) 108 ITR 417 (Guj), the Gujarat High Court held that in the case of Hindus governed by the Mitakshara law, where a son inherited the self-acquired property of his father, the son took it as the joint family property of himself and his son and not as his separate property. The correct status for the assessment to income tax of the son in respect of such property was as representing his Hindu undivided family. The Gujarat High Court could not accept the view of the Allahabad High Court mentioned hereinbefore. The Gujarat High Court dealt with the relevant provisions of the Act including Section 6 and referred to Mullas "Commentary" and some other decisions.
17. Before we consider this question further, it will be necessary to refer to the view of the Madras High Court. Before the Full Bench of Madras High Court in Additional CIT v. P.L.Karuppan Chettiar ((1978) 114 ITR 523 (Mad), this question arose. There, on a partition effected on March 22, 1954, in the Hindu undivided family consisting of P, his wife, their son, K and their daughter-in-law, P was allotted certain properties as and for his share and got separated. The partition was accepted by the revenue under Section 25-A of the Indian Income Tax Act, 1922. K along with his wife and their subsequently born children constituted a Hindu undivided family which was being assessed in that status. P died on September 9, 1963, leaving behind his widow and divided son K, who was the karta of his Hindu undivided family, as his legal heirs and under Section 8 of the Hindu Succession Act, 1956, the Madras High Court held, that these two persons succeeded to the properties left by the deceased, P, and divided the properties among themselves. In the assessment made on the Hindu undivided family of which K was the karta, for the assessment year 1966-67 to 1970-71, the Income Tax Officer included for assessment the income received from the properties inherited by K from his father, P. The inclusion was confirmed by the Appellate Assistant Commissioner, but, on further appeal, the Tribunal held that the properties did not form part of the joint family properties and hence the income therefrom could not be assessed in the hands of the family. On a reference to the High Court at the instance of the revenue, it was held by the Full Bench that under the Hindu law, the property of a male Hindu devolved on his death on his sons and grandsons as the grandsons also have an interest in the property. However, by reason of Section 8 of the Hindu Succession Act, 1956, the son's son gets excluded and the son alone inherits the property to the exclusion of his son. No interest would accrue to the grandson of P in the property left by him on his death. As the effect of Section 8 was directly derogatory of the law established according to Hindu law, the statutory provision must prevail in view of the unequivocal intention in the statute itself, expressed in Section 4(1) which says that to the extent to which provisions have been made in the Act, those provisions shall override the established provisions in the texts of Hindu law. Accordingly, in that case, K alone took the properties obtained by his father, P, in the partition between them, and irrespective of the question as to whether it was ancestral property in the hands of K or not, he would exclude his son. Further, since the existing grandon at the time of the death of the grandfather had been excluded, an after-born son of the son will also not get any interest which the son inherited from the father. In respect of the property obtained by K on the death of his father, it is not possible to visualise or envisage any Hindu undivided family. The High Court held that the Tribunal was, therefore, correct in holding that the properties inherited by K from his divided father constituted his separate and individual properties and not the properties of the joint family consisting of himself, his wife, sons and daughters and hence the income therefrom was not assessable in the hands of the assessee Hindu undivided family. This view is in consonance with the view of the Allahabad High Court noted above".
20. In (2008) 3 SCC 87 (supra), it has been held by the Hon'ble Apex Court as follows:
"18. The principle evolved in Chander Sen ((986) 3 SCC 567) was reiterated by this Court in Yudhishter v.Ashok Kumar ((1987) 1 SCC 204; Sunderdas Thackersay & Bros.vs. CIT ((1982) 137 ITR 646 (Cal); CIT v.P.L.Karuppan Chettiar (1993 Supp (1) SCC 580); and CIT v.M.Karthikeyan (1994 Supp (2) SCC 112).
19. In Yudhister ((1987) 1 SCC 204), this Court observed:(SCC pp.210-11, para 10)
"10. This question has been considered by this Court in CWT v.Chander Sen ((1977) 108 ITR 417 (Guj) where one of us (Sabyasachi Mukharji, J.) observed that
under the Hindu Law, the moment a son is born, he gets a share in father's property and becomes part of the coparcenary.
His right accrues to him not on the death of the father or inheritance from the father but with the very fact of his birth.
Normally, therefore whenever the father gets a property from whatever source, from the grandfather or from any other source, be it separated property or not, his son should have a share in that and it will become part of the joint Hindu family of his son and grandson and other members who form joint Hindu family with him".
21. In (2008) 7 SCC 46 (supra), the Hon'ble Supreme Court has held as follows:
"22. For the purpose of assigning one's interest in the property, it was not necessary that partition by metes and bounds amongst the coparceners must take place. When an intention is expressed to partition the coparcenary property, the share of each of the coparceners becomes clear and ascertainable. Once the share of a coparcener is determined, it ceases to be a coparcenary property. The parties in such an event would not possess the property as "joint tenants" but as "tenants-in-common".
The decision of this Court in SBI .vs. Ghamandi Ram ((1969) 2 SCC 33), therefore, is not applicable to the present case.
23. Where a coparcener takes definite share in the property, he is owner of that share and as such he can alienate the same by sale or mortgage in the same manner as he can dispose of his separate property.
24. We have noticed the representation made by the appellant. If the representation to the respondents' father was incorrect, the appellant should have examined his brothers. He should have shown that such a representation was made under a mistaken belief. He did nothing of that sort".
22. A reading of the above judgments would show that
when once the partition is effected in the coparcenary property, the share of each of the coparceners will be clear and ascertainable and
once the share of a coparcener is determined, it ceases to be a coparcenary property.
In the instant case, the properties were partitioned between the grandfather and the father of the plaintiffs.
Once there was a split in the coparcenary, the coparcenary ceases to be existing thereafter and the coparcenary will not continue because there cannot be two joint families in claiming the right over the ancestral properties.
When once the properties became the separate properties of Muthukumarasamy Chettiar, only his class-I heirs will be entitled to the said properties and
the plaintiffs, who are not coming under the class-I legal heirs, in my considered opinion, are not entitled to claim any share in the 'A' schedule properties.
23. So far as the 'B' schedule properties, the courts below have granted a decree as prayed for. Since 'B' schedule property is the property of their father, the 1st defendant, both the plaintiffs and the 13th defendant are entitled to each 1/4th share.
In view of these findings, I am of the opinion that there is no need to deal with the other aspects of this case, namely, the validity of the compromise decree
since the compromise decree was not challenged by the father of the plaintiffs.
Therefore, I do not find any infirmity in the judgment and decree of the courts below and the substantial questions of law are answered against the plaintiffs.
For the reasons stated above, the second appeal fails and, accordingly, the same is dismissed. No costs.
Index: Yes/No. 27.04.2011
Internet: Yes/No.
gl
To
1. The Principal District Judge,
Cuddalore.
2. The Principal Subordinate Judge,
Cuddalore.
Copy to:
The Section Officer,
V.R.Section,
High Court,Madras.
R.SUBBIAH, J.,
gl
Pre-delivery judgment in S.A.No.319 of 2007
27.04.2011
