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PETITIONER:

THIMMAIAH AND ORS.

Vs.

RESPONDENT:

NINGAMMA AND ANR.

DATE OF JUDGMENT: 25/08/2000

BENCH:

A.P.Misra, Ruma Pal

JUDGMENT:

RUMA PAL, J.

The issue to be decided in this appeal is the share of

each of the parties in coparcenary properties. Hiri

Thimmaiah (referred to briefly as Hiri) was the Karta of

the coparcenary. He had two wives Sidamma and Ningamma.

The appellants are the children of Hiris first wife,

Sidamma. The respondent No. 1 is the second wife and the

respondent No. 2 is her daughter. Hiri died in 1971. Soon

after his death, in 1972, the appellant No. 1 filed a suit

for partition by metes and bounds of 12 properties described

in the Schedule to the plaint and for separate possession of

7/12th share in such properties. The case in the plaint was

that items 1 and 2 of the schedule properties were ancestral

and all the remaining properties belonged to the

coparcenery. The further case in the plaint was that Hiri

had illegally sought to gift away item No. 1 and 2 by deed

dated 17.11.67 to the respondent No. 1 and items 3 to 6 by

deed dated 9.6.71 to the respondent No. 2. The appellant

No. 1 claimed a declaration that the gifts were void. The

appellants 2, 3 and 4 were named as defendants 3, 4 and 5 in

the suit. They filed a written statement substantially

supporting the case of the appellant No. 1 and claiming

1/4th share in all the 12 properties. In their written

statement, the respondents (who were the defendants 1 and 2

in the suit) conceded that items 1 and 2 were ancestral

properties but claimed that items 3 to 6 were the self-

acquired properties of Hiri. They claimed that both the

deeds were settlement deeds. The first settlement deed

dated 17.11.67 made provision for the maintenance of

respondent No. 1 out of items 1 and 2 and after her death,

the properties were to revert back to Hiri. By the second

deed dated 9.6.71, items 3 to 6 had been settled on the

second respondent with the consent of appellant No. 1 who

had not only put his left thumb impression on the deed but

had also signed the document as a consenting party. Issues

were framed on the basis of the pleadings. Witnesses were

examined in support of the contesting parties. The Trial

Court negatived the claim put forward by the respondents

that the two deeds were deeds of settlement. It was held

that items 3 to 6 were not the self-acquired properties of

Hiri but belonged to the coparcenary and that the two deeds

were deeds of gift and were void. In coming to this

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conclusion, the Trial Court noted the contention of the

appellant No. 1 that fraud had been committed on him and

that he had not fixed his left thumb impression by way of

his consent to the document dated 9.6.71 and said: It has

to be noted that there is material in the evidence of D.W- 2

the uncle of the plaintiff, to show that on the very same

day of the execution of the document in question, the father

of the plaintiff executed another document in favour of his

brother D.W-2 as per Ex.P- 24 and in the course of obtaining

consent of the plaintiff to that document, Ex.P-24, the

signature of the plaintiff is by deceitful means obtained on

Ex.D-2 also.

However, the Trial Judge did not hold that the deeds

were void only because of the lack of the consent of

appellant No. 1. Relying on the decision of this Court in

Ammathayee alias Perumalakkal and Anr. V. Kumaresan alias

Balakrishnan and Others AIR 1967 SC 569 the Trial Judge held

that Hiri was incompetent to gift items 3 to 6 to the

respondent No. 2 irrespective of the consent of the

appellant No. 1. According to the Trial Judge immovable

ancestral properties could only be gifted within reasonable

limits for pious purposes such as the marriage of an

unmarried daughter. The Trial Court found that a

considerable portion of the coparcenary properties had been

gifted by Hiri to the respondent No. 2 and that it could

not be said that the gift had been made in favour of the

second respondent in fulfillment of any pious purpose as she

was well below the marriageable age when the gift was made.

The appellant No. 1s suit was accordingly decreed on 8th

August 1977 as prayed for by the respondent No. 1 and a

preliminary decree for partition was passed. The

respondents preferred an appeal before the District Judge.

The first appellate Court dismissed the appeal and upheld

the findings of the trial Court that the properties were

coparcenery and could not have been affected by the two

impugned deeds executed by Hiri in favour of the

respondents. On the question of consent, the District Judge

said: Plaintiff has taken the stand that his L.T.M. is

taken to Ex.D-1 at Ex.D.1 (e) by practising fraud on him

when he had gone to the Sub-Registrars Office at the time

of execution of another document by his father regarding

sale of a site. Even if it can be held on the basis of the

evidence of D.Ws. 1 and 2 that plaintiff has attested

Ex.D-1 by putting his L.T.M. at Ex.D-1 (e), I find it

difficult to uphold the validity of Ex.D-1 as there is no

recital in the body writing of Ex.D-1 that the properties

were gifted by H. Thimmaiah in favour of the 2nd defendant

with the specific consent of the plaintiff. Therefore, the

mere attestation of Ex.D-1 by the plaintiff by putting his

L.T.M. would not validate the gift of considerable portion

of family properties made under Ex.D-1.

A second appeal was preferred by the respondents

before the High Court. There it was urged by the

respondents for the first time that by virtue of the Mysore

Hindu Law Womens Rights Act, 1993 (hereafter referred to as

the Mysore Act), the respondent No. 1 was entitled to a

widows share and the respondent No. 2 to an unmarried

daughters share in addition to their rights on intestacy as

heirs of Hiri under the Hindu Succession Act, 1956 as well

as under the two deeds dated 17.11.67 and 9.6.71. The High

Court held that the respondent No.2 was entitled to 1/9th

share in the coparcenary property under Section 8 of the

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Mysore Act but negatived the claim of the respondent No. 1

not only under the Mysore Act but also under the deed dated

17.11.67. As far as the deed dated 9.6.71 was concerned, it

was held by the High Court that items 3 to 6 had been gifted

to the respondent No. 2 with the consent of the appellant

No. 1 and was, therefore, valid. The High Court held that

the conclusion arrived at by the Trial Court and the first

appellate Court that the appellant No. 1 had not consented

to the gift, was not based on any acceptable evidence.

According to the High Court, items 3 to 6 were, therefore,

not available for partition and the parties entitlement in

the remaining properties were: Appellant No. 1 4/9+4/54 =

28/54 (son)

Appellant No. 2 = 4/54 (married daughter)

Appellant No. 3 = 4/54 (married daughter)

Appellant No. 4 = 4/54 (married daughter)

Respondent No. 1 = 4/54 (widow)

Respondent No. 2 (unmarried daughter) 1/9+4/54 =

10/54

The judgment delivered on 1st August 1991 by the

learned Single Judge of the High Court has been impugned

before this Court on the ground that the High Court on

second appeal should not have interfered with concurrent

findings of fact on the appellants lack of consent and

should not have applied the provisions of the Mysore Act

which, according to the appellants, had been excluded by the

provisions of Section 4 of the Hindu Succession Act, 1956.

The respondents have relied upon the decision of this Court

in Ladli Parshad Jaiswal V. The Karnal Distillery Co., Ltd.

Karnal and Others AIR 1963 SC 1279 to contend that the High

Court was competent to reverse the finding of the lower

Courts that there was no consent of the appellant No. 1,

because the finding was based on no evidence. It is also

contended that the provisions of the Mysore Act are

ancillary to the provisions of the Hindu Succession Act,

1956 and particularly Sections 6 and 8 of that Act. In

Jaiswals case (supra), this Court has, no doubt, held that:

A decision of the first appellate Court reached after

placing the onus wrongfully or based on no evidence, or

where there has been substantial error or defect in the

procedure, producing error or defect in the decision of the

case on the merits, is not conclusive and a second appeal

lies to the High Court against that decision.

But at the same time, this Court has noted that the

High Court has no jurisdiction to entertain a second appeal

on the ground of an erroneous finding of fact however gross

or inexcusable the error may seem to be. In other words,

if there is some evidence and the appreciation of the

evidence is erroneous, a second appeal will not lie.

Further the decision in Jaiswals case was rendered prior to

the amendment of Section 100 by which the provisions of

second appeal are more stringent and have been strictly

limited to those cases where a substantial question of law

arises and in no others. We have already noted the

findings of the Trial Court as well as the first appellate

Court on the question of consent. These observations

clearly show that there was some evidence in support of the

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finding of the lower Courts. In the circumstances, the High

Court was not entitled to reassess the evidence and arrive

at a different conclusion. Besides the onus was on the

respondents to prove the fact of the appellant No. 1s

consent. When items 3 to 6 were being claimed by the

respondents to be the self-acquired property of Hiri, it

could hardly be contended in the same breath that the

appellant No. 1 had consented to the gift of items 3 to 6

on the basis that it was coparcenary property and the

appellant No. 1 the only other coparcener. The High Court

also erred in its view on the effect of consent on a gift

which may otherwise be void. This Court in Ammathayee alias

Perumalakkal and Another V. Kumaresan alias Balakrishnan

and Others AIR 1967 SC 569 summarised the Hindu Law on the

question of gifts of ancestral properties in the following

words: Hindu law on the question of gifts of ancestral

property is well settled. So far as moveable ancestral

property is concerned, a gift out of affection may be made

to a wife, to a daughter and even to a son, provided the

gift is within reasonable limits. A gift for example of the

whole or almost the whole of the ancestral moveable property

cannot be upheld as a gift through affection. (See Mullas

Hindu Law, 13th Edn., p.252, para 225). But so far as

immovable ancestral property is concerned, the power of gift

is much more circumscribed than in the case of moveable

ancestral property. A Hindu father or any other managing

member has power to make a gift of ancestral immovable

property within reasonable limits for pious purposes;

(see Mullas Hindu Law, 13th Edn., para 226, p. 252). Now

what is generally understood by pious purposes is gift for

charitable and/or religious purposes. But this Court has

extended the meaning of pious purposes to cases where a

Hindu father makes a gift within reasonable limits of

immovable ancestral property to his daughter in fulfilment

of an antenuptial promise made on the occasion of the

settlement of the terms of her marriage, and the same can

also be done by the mother in case the father is dead.( See

Kamala Devi v. Bachu Lal Gupta, 1957 SCR (AIR 1957 SC

434).

The Karta is competent or has the power to dispose of

coparcenary property only if (a) the disposition is of a

reasonable portion of the coparcenary property and (b) the

disposition is for a recognised pious purpose. The High

Court has not come to any conclusion as to whether the gift

of items 3 to 6 by Hiri to the respondent No. 2 was within

reasonable limits or in fulfilment of an antenuptial promise

made on the occasion of the settlement of the terms of the

respondent No.2s marriage. It must be taken, therefore,

that the findings of the lower Courts on both counts were

accepted. That being so, Hiri could not have donated items

3 to 6 to respondent No. 2 and the deed of gift dated

9.6.71 was impermissible under Hindu Law. The question is -

could such an alienation be made with the consent of the

appellant No. 1? It is arguable that there is a

distinction between a void disposition and a voidable one,

and that the gift in favour of the respondent No. 2 being

void cannot be made even with the consent of the appellant

No.1. However, it is not necessary to decide the issue in

the view that we have taken in this case. This Court in

Guramma V. Mallappa AIR 1964 SC 510 has envisaged three

situations of voidable transactions. It was held that a

managing member may alienate joint family property in three

situations namely: (i) legal necessity, or (ii) benefit of

the estate or (iii) with the consent of all the coparceners

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of the family. Where the alienation is not with the consent

of all the coparceners, it is voidable at the instance of

the coparcener whose consent has not been obtained.

Needless to say where there is only a sole surviving

coparcener and no other member of the family who has a joint

interest in the property, there are no fetters on the

alienation of the property. Assuming that the principle

enunciated in Guramma V. Mallappa (supra) would apply to

void alienations of joint family property, the question of

consent of all interested parties would still remain. The

rationale behind the impermissibility of certain

dispositions of coparcenary properties is the protection of

the interest of other coparceners. Where other persons have

an interest in coparcenary property, whether inchoate or

otherwise, and willingly acquiesce in the depletion of such

interest for whatever purpose, such a disposition would be

permissible. In this case, apart from the appellant No. 1,

if the other heirs of Hiri had such an interest, merely

getting the consent of the appellant No. 1 would not do.

The impugned deed was executed in 1971, prior to Hiris

death in the same year. By this time, the Hindu Succession

Act, 1956 had come into force. The proviso to section 6 of

the 1956 Act ( considered at greater length later in the

judgment) now provides that the deceaseds interest in

Mitakshara coparcenary property does not devolve by

survivorship if the deceased leaves surviving him female

relatives specified in class I of the Schedule.

Consequently, the interest of the surviving coparcener to

the deceaseds coparcenary share, in such a case, no longer

survives and his consent to depletion of his interest in

joint family property would not, therefore, make a gift of

coparcenary property otherwise invalid, valid. Consent in

such a case would have to be obtained from all the persons

who could claim a share in the deceased coparceners

interest. The appellants 2, 3 and 4 as well as both the

respondents are class I heirs of Hiri. It is not the case

of the respondents that the appellants 2, 3 and 4 had

consented to the gift. We are, therefore, of the opinion

that the finding of the High Court on the validity of the

deed of gift dated 9.6.71 is unsustainable and it is

accordingly set aside. The next question is the

applicability of Section 8 (1) (d) of the Mysore Act. It

may be stated at the outset that while we affirm the

conclusions reached as to the shares of the parties, it

appears to us that the High Court has misconstrued the

provisions of Section 8 (1) (d). Section 8 reads:

8. Certain females entitled to shares at partition.

(1) (a) At a partition of joint family property between a

person and his son or sons, his mother, his unmarried

daughters and the widows and unmarried daughters of his

predeceased undivided sons and brothers who have left no

male issue shall be entitled to share with him.

(b) At a partition of joint family property among

brothers, their mother, their unmarried sisters and the

widows and unmarried daughters of their predeceased

undivided brothers who have left no male issue shall be

entitled to share with them.

(c)Sub-sections (a) and (b) shall also apply mutatis

mutandis to a partition among other coparceners in a joint

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family.

(d) Where joint family property passes to a single

coparcener by survivorship, it shall so pass subject to the

right to shares of the classes of females enumerated in the

above sub-sections.

(2) Such share shall be fixed as follows: -

(a) in the case of the widow, one-half of what her

husband, if he were alive, would receive as his share;

(b) in the case of the mother, one-half of the share

of a son if she has a son alive, and, in any other case,

one- half of what her husband if he were alive, would

receive as his share;

(c) in the case of every unmarried daughter or sister,

one-fourth of the share of a brother if she has a brother

alive, and, in any other case, one-fourth of what her

father, if he were alive, would receive as his share:

provided that the share to which a daughter or sister is

entitled under this section shall be inclusive of, and not

in addition to, the legitimate expenses of her marriage

including a reasonable dowry or marriage portion.

(3) In this section, the term widow includes, where

there are more widows than one of the same person all of

them jointly, and the term mother includes a step- mother

and, where there are both a mother and a step- mother, all

of them jointly and the term son includes a step-son as

also a grandson and a great grandson; and the provisions of

this section relating to the mother shall be applicable

mutatis mutandis to the paternal grandmother and great

grandmother.

(4) Fractional shares of the females as fixed above

shall relate to the share of the husband, son, father or

brother as the case may be and their value shall be

ascertained by treating one share as allotted to the male

and assigning therefrom the proper fractional shares to the

female relatives.

5. Each of the female relatives referred to in sub-

section (1) shall be entitled to have her share separated

off and placed in her possession.

Provisos: - Provided always as follows: - (i) No

female relative shall be entitled to a share in property

acquired by a person and referred to in Section 6, so long

as he is alive;

(ii) No female whose husband or father is alive shall

be entitled to demand a partition as against such husband or

father, as the case may be;

(iii) A female entitled to a share in any property in

one capacity of relationship shall not be entitled to claim

a further or additional share in the same property in any

other capacity.

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Illustration: A and his son B effect a partition of

their family property. A has a mother and two unmarried

daughters. Their shares will be as follows: -

Father .. .. 1 Son .. .. 1 Mother .. .. ½ Two

daughters .. .. ¼ each The property will be divided in the

above proportion, the father getting 1/3, the son 1/3, the

mother 1/6 and each daughter 1/12.

Clauses (a), (b), (c) and (d) of sub-section (1) of

Section 8 deal with four separate situations. Clause (a)

deals with a partition of joint family between a person and

his sons. Clause (b) deals with the partition of joint

family property among brothers, clause (c) applies to a

partition among other coparceners in a joint family. Clause

(d) provides for a situation where joint family property

passes to a single coparcener by survivorship. The female

members who have been declared to be entitled to shares are

the mother of the concerned coparcener, his unmarried

daughters and widows and unmarried daughters of pre-deceased

sons and undivided brothers. At this stage, it would be

appropriate to refer in detail to relevant portions of

Section 6 of the 1956 Act: 6. Devolution of interest in

coparcenary property. - When a male Hindu dies after the

commencement of this Act, having at the time of his death an

interest in a Mitakshara coparcenary property, his interest

in the property shall devolve by survivorship upon the

surviving members of the coparcenary and not in accordance

with this Act.

Provided that, if the deceased had left him surviving

a female relative specified in class I of the Schedule or a

male relative specified in that class who claims through

such female relative, the interest of the deceased in the

Mitakshara coparcenary property shall devolve by

testamentary or interestate succession, as the case may be,

under this Act and not by survivorship.

Explanation 1. For the purposes of this section,

the interest of a Hindu Mitakshara coparcener shall be

deemed to be the share in the property that would have been

allotted to him if a partition of the property had taken

place immediately before his death, irrespective of whether

he was entitled to claim partition or not.

Explanation 2 x x x x x x x x

(Emphasis supplied)

It is not in dispute that the Mysore Act deals with

Hindu Mitakshara coparcenary rights. This is also clear

from the definition of Hindu in section 3 (c) of the

Mysore Act. Section 4 of the 1956 Act gives overriding

effect to the 1956 Act in so far as any law governing Hindus

is inconsistent with the provisions of the 1956 Act.

Reading the proviso to section 6 of the 1956 Act with

section 8 of the Mysore Act, it is clear that where the

female members sought to be protected under Section 8 of the

Mysore Act are in fact Class I heirs of a deceased

coparcener, his interest in the joint family property cannot

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pass by survivorship at all. Thus the question of it

passing subject to the rights of any class of females under

Section 8 (1) (d) of the Mysore Act does not also arise.

This would mean that Section 8 (1) (d) of the Mysore Act has

been superseded by the proviso to Section 6 of the 1956 Act

to the extent stated. The decision in Gurupad Khandappa

Magdum Vs. Hirabai Khandappa Magdum & Ors. 1978 (3) SCR

671 is an authority for the proposition that where a female

is entitled to a share in coparcenary property on partition,

then by virtue of Explanation I to Section 6 of 1956 Act,

she continues to be so entitled despite the fact that no

partition may actually have taken place prior to the

coparceners death. This Court held that Explanation I to

Section 6 covered a situation where a Hindu coparcener dies

without actual partition having taken place. In such event,

the Court will have to assume that a partition had in fact

taken place immediately prior to the death of the coparcener

concerned and grant shares on the basis of such notional

partition. This Court also held that the share of the

female member on such partition was in addition to any share

which she may get as an heir of the deceased coparcener.

[See also State of Maharashtra V. Narayan Rao 1985 (3) SCR

358; AIR (1985) SC 716, 721]. Reliance by the respondents

on the decision of this Court in Gurupad Khandappa Magdum V.

Hirabai Khandappa Magdum and Ors. 1978 (3) SCR 671 to

contend that the respondents were entitled to shares in the

coparcenary property by virtue of Section 8 (1) (d) of the

Mysore Act is misplaced because as already noted Section 8

(1) (d) in terms does not apply in the facts of this case

because of the proviso to Section 6 of the 1956 Act. Under

Explanation I to Section 6 of the 1956 Act , the Court will

have to ascertain what the shares of the parties would be as

if Hiri had sought for partition just before his death. The

only other coparcener being the appellant No.1, the

partition would have to be effected according to Section 8

(1) (a) which provides for partition between a coparcener

and his son/sons. Under Section 8 (1) (a) the female

members who could claim a share in the coparcenary

properties would be Hiris mother, his unmarried daughter (

the respondent no.2) and the widow or unmarried daughters of

any predeceased sons or brother. Admittedly, Hiris mother

was not alive in 1971. Nor had Hiri any predeceased son or

brother. The sole female member entitled to a share under

Section 8 (1) (a) therefore is the respondent No.2. The

appellant being the other coparcenar would get ½ of the

coparcenary properties on partition. In terms of Section 8

(2) (c) of the Mysore Act, his sister, the respondent no.2

would get ½ her brothers share, namely 1/4th of the

coparcenary properties. The remaining interest would belong

to Hiri. It has not been disputed before us that under

Section 8 of the 1956 Act, each of the parties to this

appeal is entitled to claim a share in Hiris interest as

his Class I heir. On the basis of the ratio in Gurupad

Khandappa Magdums case (supra) , the respondent No.2 would

also be entitled to a share in Hiris interest as an heir on

intestacy, under Section 8 of the 1956 Act. To sum up: if

there were an actual partition of the coparcenary properties

between Hiri and his son, under Section 8 (1) (a) of the

Mysore Act, his son, the appellant No. 1 would get ½ share.

His wife, namely the respondent No. 1, and the appellants

2, 3 and 4 would not get any share in the coparcenary

property at all. But the respondent No. 2 as the unmarried

daughter would get a share calculated in terms of Section 8

(2) (c) of the Mysore Act, namely, 1/4th of the share of her

brother, namely, the appellant No. 1 in addition to her

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share as the heir of Hiri. All the appellants as well as

both the respondents are each entitled to an equal share in

Hiris interest as heirs on intestacy. The High Court has,

therefore, correctly calculated the shares of the parties

and we affirm its conclusion in this regard. The appeal is

accordingly partly allowed. We hold that items 3 to 6 of

the Schedule to the plaint are available for partition as

coparcenary property according to the shares declared by the

High Court. There will be no order as to costs.