TaxTMI 
TaxTMI 
TaxTMI 
2016 (10) TMI 1406
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....4 in O.S.No. 124 of 1995 on the file of the Court of Munsiff, Chittur are the appellants. The plaintiff and other defendants are the respondents. 3. Heard the learned counsel appearing for the appellants and respondents 1 to 3. 4. The suit is one for partition with following averments: The properties belonged to Veluchami. He had married defendants 1 and 2. His first wife (1st defendant) died pending the suit. Her legal representatives are the plaintiff and defendants 3 to 5. No issue was born to Veluchami through his 2nd wife (2nd defendant). Plaintiff and other contesting defendants are the children born to Veluchami through the deceased 1st defendant. 5. The properties originally belonged to the family of Kumarachami Kounder. On 26.09.1956, Kumarachami Kounder, and his children, viz., Veluchami and Pazhanichami partitioned the properties as per Ext. A1 partition deed. It is recited in Ext. A1 that the property devolved on Kumarachami Kounder as per a partition in 1098 ME (corresponding to 1933 Christian Era). The recitals in Ext. A1 would clearly show that the properties were ancestral in nature. As per Ext. A1, the plaint items were set apart to Veluchami in A schedule. Velu....
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....Aggrieved by the judgment and decree, the defendants 1, 2 and 4 took up the matter in appeal before the District Court, Palakkad as A.S.No. 45 of 1997. The lower appellate court found that an order of remand was essential for raising an issue regarding nature of the property and the rights of defendants 3 and 5 thereon. According to the learned Additional District Judge, number of shares would change according to the findings on this issue. The issues cast touching on the non-joinder of necessary parties and adverse possession and limitation were concluded in favour of the plaintiff by the lower appellate court in the first round of litigation and now they have become final. Subsequent to the remand, the trial court reconsidered the surviving issues and again the suit was decreed. A preliminary decree for partition was passed. But, this time the trial court found that the plaintiff was entitled to get 1/4th share in the plaint schedule properties. The obvious reason was that the 1st defendant, mother of the plaintiff and defendants 3 to 5, expired in the meantime resulting in augmentation of their share. That apart, it was found that the 2nd defendant, who claimed to be wife of Vel....
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.... separate property of the 1st defendant. 11. A learned Single Judge of this Court examined the apparent conflict in the judicial opinions as to whether a property devolved on a coparcener by partition partakes the character of his separate property or it retains the character of a joint family property. After surveying various decisions touching on Sections 4, 6 and 8 of the Hindu Succession Act, 1956 (in short, "Act of 1956") the learned Single Judge in paragraphs 16 to 18 held that a property allotted to a Hindu in a partition of joint family properties has to be treated as his separate property over which he has a right of disposition. Statement of facts in the said decision do not reveal a crucial aspect whether the plaintiffs were born before or after 1965, the year in which the family properties were partitioned. Learned counsel for the appellants seriously challenged correctness of the above proposition as a universal rule, applicable to all situations. 12. It is revelant to note that the Supreme Court in Uttam v. Saubhag Singh and others (2016 (4) SCC 68) has recently considered a similar question. The plaintiff in a suit for partition appealed to the Supreme Court. Along....
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....1956, it can be seen that the properties dealt with therein were ancestral properties. "Ancestral property" is a technical term. It has a special meaning. It does not mean property inherited from any ancestor, male or female, paternal or maternal, near or remote. But, only such property as is inherited by a male from his father, father's father and father's father's father. Such inheritor's son, son's son and son's son's son get an interest in it by birth. Even Veluchami's father Kumarachami Kounder had acknowledged in Ext. A1 that the properties belonged to a coparcenary consisted of himself and his two male children. In the light of these clear recitals in Ext. A1 regarding nature of the properties, that they were ancestral properties in the hands of Kumarachami and his children including Veluchami, the pertinent question is whether the principles in Co- operative Bank's case and Uttam's case can be applied to this case. It is apposite to note that the facts in both the cases mentioned above do not show that the plaintiff/plaintiffs concerned was/were born before division of the properties among the coparceners. In this case, it is an undisputed fact t....
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....perty cannot be said to be a property in which B and C have a right by birth. But the moment A dies intestate, that property descends to his son B and the grandson C gets interest in it as coparcenary property even though the character of coparcenary property attached to it long after C's birth." 16. Another principle of inheritance under the pristine Hindu Law is that a son or a grandson, whose father is dead, and a great grandson, whose father and grandfather are both dead all succeed simultaneously as one heir. On a partition in the family consisting of other members, among the aforementioned persons, they take per stripes and not per capita. Further, an interest of a coparcener is a fluctuating interest, capable of being enlarged by deaths in the family and liable to be diminished by births in the family. So, whilst the joint family remains undivided, no coparcener can predicate his exact share in the family properties. 17. Indisputably, in this case Section 6 of the Act of 1956, as it stood before substitution in 2005, is the law applicable. It read as follows: "Devolution of interest in coparcenary property.-When a male Hindu dies after the commencement of this Act, ....
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....5 has no effect in the case on hand mainly for the reason that the Kerala Joint Hindu Family System (Abolition) Act, 1975 (in short, "Act of 1976") has come into effect in the State on 01.12.1976, much before the death of Veluchami. The State Act of 1976 has made sea changes in the matter of rights in all forms of Hindu joint families, including Mithakshara coparcenary. By virtue of the provisions in the Act of 1976, a notional partition had taken place on the date of commencement of the Act and therefore, no joint family survived thereafter. 18. This development of law, exclusively prevailing in the State of Kerala, completely different from other parts of the country, gave rise to three situations in respect of the right to joint family properties. Firstly, a situation which existed prior to commencement of the Act of 1956 on 17.06.1956. Second situation related to a period after commencement of the Act of 1956, but before the Act of 1976 came into effect. The third situation arose after commencement of the Act of 1976, i.e., on or after 01.12.1976. Before commencement of the Act of 1956, the rule of survivorship prevailed among coparceners in respect of ancestral properties. In....
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.... of coparceners in a partition deed should not denude them of their rights. That also would not affect or alter the nature of property involved in the document. And the property still would remain as coparcenary property. In other words, a mere non- inclusion of certain coparceners in a partition deed will not make a coparcenary property a separate property of the executants. In this case, another contention is that Ext. B1 release deed, taken from the defendants 3 and 5 by Veluchami and his two wives, also probabilises the case of the appellants that deceased Veluchami himself had acknowledged the nature of property as one belonged to a coparcenary. 22. From the above discussion, it is clear that the Munsiff and the District Judge did not properly appreciate the marked distinction between the facts in Co-operative Bank's case and this case. Both the courts failed to notice that the ratio in Co-operative Bank's case was distinguishable on facts. The principle of law pronounced in a different set of facts was wrongly applied to this case. Hence, I have no hesitation to hold, in the facts and circumstances of this case, that the defendants 3 and 5 have acquired a right by birth in E....
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.... learned counsel for the contesting respondent opposed this submission. It is to be noticed that there is no averment in the pleadings indicating the date of marriage between Veluchami and 1st appellant. It is true, there is a presumption in favour of a marriage, if continued co-habitation between a man and a woman has been established. 25. Before commencement of the Act of 1955, there was no prohibition among Hindus following various caste systems, especially those who were governed by customary law, in having plurality of wives. In other words, polygamous marriages were recognized among many Hindu communities. However, this, being a question of fact, can be decided only on adducing sufficient evidence. While appreciating the evidence, the aforementioned presumption also can be considered. Both sides admit that this question was not properly addressed at the time of trial. 26. Learned counsel for the appellants contended that the lower appellate court did not consider I.A. No. 1186 of 2007 in A.S. No. 201 of 2004. Three documents were produced along with an application filed under Order XLI Rule 27 of the Code of Civil Procedure, 1908 (in short, "Code"). One is a Will said to ha....