grandson would get right in the grandfather's property.

grandson would get right in the grandfather's property.


The principles laid down in the above said decisions throw much light on the subject. In view of the illuminating judicial pronouncements as decided in Chander Sen case supra Schedule-I in the Hindu Succession Act, 1956, does not include a son's son. When a hindu dying interstate, the first class heirs namely, the heirs mentioned in Schedule-I, namely, son, daughter, widow and brother shall take equally to the exclusion of the other heirs, including son's son. The Hon'ble Supreme Court has held in that case that the earlier law which gives right to a son's son, seized to exist on the advent of the Hindu Succession Act. By introducing a scheme of devolution under Section 8 of the Act, a son's son of the hindu interstate has specifically been excluded. The earlier position that the grandson would get right in the grandfather's property did not continue after passing of the Act. The Hon'ble Supreme Court has described this position in the said decision as the hindu law giving a right by birth in such property "seized to have effect". In view of this legal position, the plaintiff in the present case did not acquire right by birth in the property which came to the hands of his father by partition after the death of his grandfather. Hence, he is not entitled to get partition in the property. Both these points are answered in negative.

 Following the settled positions as enunciated by the Hon'ble Supreme Court and the Full Bench of this High Court, this Court is of the opinion that the claim of the plaintiff is barred under Section 8 of the Hindu Succession Act since he has been specifically excluded from inheriting the property belonged to his grandfather. Hence, the judgment and decree of the Court below deserves to be set aside and it is accordingly set aside. The appeal has to be allowed.

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Madras High Court

M.Kumaran vs J.Rajesh (Minor) on 11 August, 2010

DATED: 11.08.2010

CORAM:

THE HONOURABLE MR. JUSTICE S.PALANIVELU

A.S.No.609 of 2003

1.M.Kumaran

2.K.Santhi ... Appellants

- Vs -

1.J.Rajesh (Minor)

(Rep. by his mother and natural Guardian J.Gomathi)

2.R.Jayagopal ... Respondents

Appeal Suit filed under Section 96 of the Code of Civil Procedure, against the judgment and decree dated 30.01.2003 passed in O.S.No.1698 of 1997, on the file of the II Additional City Civil Judge, Chennai. For Petitioner : Mr.S.Udayakumar

For Respondent 1 : Mr.N.D.Bahety

For Respondent 2 : M/s.R.S.Ganesh Babu

***

JUDGMENT

This appeal has been preferred by the unsuccessful second and third defendants against the judgment and decree dated 30.01.2003 made in O.S.No.1698 of 1997, on the file of the II Additional City Civil Judge, Chennai.

2. The following are the averments in the plaint succinctly stated:

2(i). The first defendant is father of the plaintiff. The first defendant is the only son to his parents. At the time of marriage, the first defendant was doing plastic business separately and earning a sum of Rs.4,000/- per month. After the marriage his wife came to know that her husband was in the habit of consuming alcoholic drinks and addicted to the same and consequently his father could not meet the family expenses. Both the plaintiff and his mother were treated cruelly by his father/the first defendant. A complaint was also made with regard to dowry harassment with Women Police Station, Thousand Lights, Chennai. 2(ii). The plaintiff is not in possession of the suit property. Since the first defendant is leading wayward life, his sister G.Lalitha filed a partition suit in C.S.No.1728 of 1993 in this Court for partition and separate possession of the properties of N.Ramakrishnan i.e., the father of the first defendant. The said suit was decreed on the basis of a compromise memo wherein the first defendant has been allotted ancestral property to an extent of 1811 sq. ft. The plaintiff has stated that he is entitled to half share in the above said property. The first defendant is trying to alienate the above said property and that would deprive the valuable rights of the plaintiff to the suit property. Hence, the plaintiff has filed a suit for partition of his half share in the suit property. The first defendant is liable to pay mesne profits from the date of plaint till the date of separate possession of the half share.

3. The written statement filed by the second and third defendants contains the following averments:

3(i). The defendants deny all the allegations made in the plaint and they are aware of the alleged habits of the plaintiff's father and alleged treatment meted out to the mother of the plaintiff. The first defendant was the absolute owner by virtue of a decree passed in C.S.No.1728 of 1993 by this Court. The first defendant has offered to sell the property and approached these defendants to buy the same for a valuable consideration and accordingly the defendants purchased the schedule mentioned property under two different sale deeds from the first defendant on 03.04.1997 and 17.04.1997 and registered as Doc.No.357/97 and 392/97 respectively. These defendants have paid the entire sale consideration to the first defendant and taken possession of the schedule mentioned property. Subsequent to purchase, the electricity connection has been transferred in the name of these defendants. The property tax is also assessed in the name of the defendants. The defendants 2 and 3 had also obtained patta on 04.06.1997. 3(ii). The defendants have categorically stated the above facts in the counter affidavit filed in the impleading application. The plaintiff is not entitled to any share in the property in view of the fact that before the plaintiff's birth the plaintiff's mother had lived separately and afterwards only the plaintiff was born and hence the claim made by the plaintiff is not sustainable in law. Having regard to the circumstances of the case and having regard to the birth of the plaintiff, the plaintiff's claim of the alleged half share in the plaint schedule property is not tenable and therefore the claim made by the minor plaintiff has to be rejected. The plaintiff's mother is filing this vexatious suit only to give trouble to the defendants 2 and 3 including the first defendant. Therefore, they prayed for dismissal of the suit with costs.

4. After analysing the pleadings, evidence and the records, the learned II Additional Judge, City Civil Court, Chennai, has passed the preliminary decree as prayed for with costs. Aggrieved against the above said judgment and decree, the appellants who are the second and third defendants in the suit are before this Court.

5. The following points have arisen for consideration in this appeal:-

(i) Whether the plaintiff acquired right by birth in the property which fell into the share of the first defendant/his father?

(ii) Whether the plaintiff is entitled to get partition as prayed for?

6. The property originally belonged to the father of the first defendant by name N.Ramakrishnan. The first respondent/plaintiff is son of the first defendant. The plaintiff being minor is being represented by his mother and natural guardian J.Gomathi. It is alleged in the plaint that her marriage with the first defendant was held on 01.03.1993 in Chennai, that it was told that at the time of marriage that he was earning about Rs.4,000/- per month, that after the marriage, she came to know that he was a drunkard, that he perpetrated cruelty, beat her and also used to throw lighted match sticks upon her and that he ignored her without providing food and cloth. The plaintiff was born on 06.01.1994.

7. The first defendant's sister one G.Lalitha filed a suit in C.S.No.1728 of 1993 on the file of this Court for partition and separate possession of properties belonging to N.Ramakrishnan. On 03.02.1994, a compromise was entered into between the parties and an extent of 1811 Sq.ft. in old Door No.91 and 94 and New Door No.3, Pulipon Bazaar Street, Triplicane, Chennai, was allotted to the share of the first defendant. It is claimed that the plaintiff is entitled to half share in the suit property under premise that it is ancestral property of first defendant.

8. The second respondent/first defendant remained ex parte in the suit and before this Court as well. On 03.04.1997 and 17.04.1997, he executed two sale deeds in favour of the appellants in Ex.B2 and B3, with regard to the property which he obtained the above partition suit. After the purchase, the appellants have been enjoying the same by paying property tax etc.

9. It is the bottom line contention of the learned counsel for the appellants Mr.S.Udayakumar, that the first defendant/divided son became the absolute owner of the property allotted to him in the partition and he can deal with the property as per his wish and desire and his son/the plaintiff does not get any right in the property by birth, that he cannot claim to be coparcenar in the property nor is he a co-sharer and the suit for partition is not maintainable.

10. Contending contra, the learned counsel appearing for the first respondent/plaintiff Mr.N.D.Bahety, would submit that since the plaintiff was born to the first defendant, he acquired rights in the property which is ancestral property which admittedly originally belonged to the father of the first defendant and that the partition suit is very well within the frame of law.

11. In support of his contention, the learned counsel for the appellants would place much reliance upon a Full Bench decision of the Supreme Court reported in AIR 1979 Madras 1 (The Additional Commissioner of Income tax, Madras-1 v. P.L.Karuppan Chettiar), wherein it has been held that the divided son became the absolute owner of the property which he got from his father and his son would not get any right in the property. The relevant portion in the judgment are thus: 5. This is a case where a person who had obtained the property under partition died. His name was Palaniappa. When he died, his son Karuppan was alive. We are concerned with the property which Palaniappa had obtained in the partition. We have dealt with the effect of Section 8 earlier and it is clear that here Karuppan alone took the properties of his father Palaniappa which the latter had obtained in the partition, and irrespective of the question whether it was ancestral property in the hands of Karuppan or not, he would exclude his son. Since the existing grandson at the time of the death of the grandfather has been excluded, we think that an after-born son of Karuppan will also not get any interest which Karuppan inherited from his father. Thus, the principles of Hindu Law are not applicable.

12. Later the Hon'ble Supreme Court in the case of Commissioner of Wealth Tax, Kanpur and others v. Chander Sen and Others (1986) 3 Supreme Court Cases 567, had an occasion to deal with this proposition of law referred the view taken by the Full Bench stated above and held that, Class-I heirs listed in the Schedule under Section 8 of the Hindu Succession Act, 1956 makes the son of an intestate to become an absolute owner of the property which he derives from his father and constitutes the property as absolute one and his son has no right by birth over such properties. Their Lordships also referred to the following decisions of various High Courts and approved the view taken by other High Courts excepting the Gujarat High Court whose decision has been overruled. (1) CIT v. Ram Rakshpal, Ashok Kumar, (1968) 67 ITR 164 (All).

(2) Addl. CIT v.P.L.Karuppan Chettiar, (1978) 114 ITR 523 (Mad).

(3) Shrivallabhdas Modani v. CIT, (1982) 138 ITR 673 (MP)

(4) CWT v. Mukundgirji, (1983) 144 ITR 18 (AP)

13. The relevant portion affirming the decisions of the High Courts are as follows:

(Para 18) "Therefore, the property which devolved on a Hindu on the death of his father intestate after the coming into force of the Hindu Succession Act, 1956, did not constitute HUF property consisting of his own branch including his sons. It followed the Full Bench decision of the Madras High Court as well as the view of the Allahabad High Court in the two cases noted above including the judgment under appeal." (Para 19) "Accordingly the property which devolved upon heirs mentioned in Class I of the Schedule under Section 8 constituted the absolute properties and his sons have no right by birth in such properties." (Para 25) "In the aforesaid light the views expressed by the Allahabad High Court, the Madras High Court, the Madhyapradesh High Court and the Andhra Pradesh High Court, appear to us to be correct. With respect we are unable to agree with the views of the Gujarat High Court noted hereinbefore."

14. The above said P.L.Karuppan Chettiar's case decided by this Court has been confirmed by the Hon'ble Apex Court which is reported in 1993 Supp (1) Supreme Court Cases 580 (Commissioner of Income Tax v. P.L.Karuppan Chettiar). Operative portion of the judgment is as under: "In view of the decision of this Court in CWT v. Chander Sen (1986) 3 SCC 567: 1986 SCC(Tax)641:(1986)161 ITR 370, the question referred to this Court directly by the Tribual under Section 257 of the Income Tax, 1961 is answered in favour of the assessee by saying that the income from the properties in question is not assessable in the hands of the assessee Hindu Undivided Family. The reference is answered accordingly. There will be no order as to costs."

15. He also placed reliance upon another decision of the Hon'ble Supreme Court reported in (2008) 3 SCC 87 (Bhanwar Singh v. Puran and others), wherein also, Their Lordships have laid down the same proposition of law. It is observed therein that the learned first appellate Court, however, reversed the same findings, inter alia, holding that upon the death of Bhima, Sant Ram became a co-sharer of the property and having regard to the entries of the jamabandi for the year 1973-1974, it had been established that he, along with his sisters, having inherited the same in equal shares, the property lost the character of ancestral property in terms of Section 8 of the Hindu Succession Act. In the end of the judgment it is observed that, it is therefore, not correct to contend that the Court of first appeal arrived at a self-contradictory or inconsistent finding.

16. In the said case, earlier decision of the Hon'ble Supreme Court in Sheela Devi v. Lal Chand,(2006) 8 SCC 581 is referred and distinguished. In the said case, it is decided as follows: "12. The principle of law applicable in this case is that so long a property remains in the hands of a single person, the same was to be treated as a separate property, and thus such a person would be entitled to dispose of the coparcenary property as the same were his separate property, but, if a son is subsequently born to him or adopted by him, the alienation whether it is by way of sale, mortgage or gift, will nevertheless stand, for a son cannot object to alienations so made by his father before he was born or begotten (see C.Krishna Prasad v. CIT (1975) 1 SCC 160 : 1975 SCC (Tax) 16). But once a son is born, it becomes a coparcenary property and he would acquire an interest therein."

17. The Hon'ble Supreme Court is of the opinion that when the properties devolved upon the divided sons and daughters per capita and not per stripes, each one of them was entitled to alienate their shares, particularly, when different properties were allotted in their favour and in a case of this nature, the joint coparcenary does not come. It was further held that the first appellate Court rightly held that Section 6 of the Hindu Succession Act was not attracted to the facts of the case as sisters having partitioned their properties became owners to the extent, he had the requisite right to transfer the lands falling within his share.

18. The sum and subsistence of the above said decisions go to the effect that when a divided son or daughter has got the property belonging to their father in a partition, whether it is ancestral or self-acquired property of the father, they become absolute owners of their respective shares and they can deal with the properties exclusively excluding their sons. The son of a divided son does not get right from his father by birth who is excluded by virtue of Section 8 of the Hindu Succession Act and he cannot become a coparcenar in the property in question.

19. Similarly, following the law laid down in P.L.Karuppan Chettiar's case above, this Court in (2007) 4 MLJ 993 (N.Ramachandran v. E.Varadarajan and another), has held that if two sons inherit the self-acquired property of father, the grandson has no right in the property. In the case on hand, it is not pleaded whether the suit property is ancestral property of N.Ramakrishnan or his self-acquired property. Whatever may be, either it is ancestral or self-acquired property of N.Ramakrishnan, the position is the same when the divided property reaches the hands of a son who would become absolute owner therefor and his son does not get interest in the same.

20. The principles laid down in the above said decisions throw much light on the subject. In view of the illuminating judicial pronouncements as decided in Chander Sen case supra Schedule-I in the Hindu Succession Act, 1956, does not include a son's son. When a hindu dying interstate, the first class heirs namely, the heirs mentioned in Schedule-I, namely, son, daughter, widow and brother shall take equally to the exclusion of the other heirs, including son's son. The Hon'ble Supreme Court has held in that case that the earlier law which gives right to a son's son, seized to exist on the advent of the Hindu Succession Act. By introducing a scheme of devolution under Section 8 of the Act, a son's son of the hindu interstate has specifically been excluded. The earlier position that the grandson would get right in the grandfather's property did not continue after passing of the Act. The Hon'ble Supreme Court has described this position in the said decision as the hindu law giving a right by birth in such property "seized to have effect". In view of this legal position, the plaintiff in the present case did not acquire right by birth in the property which came to the hands of his father by partition after the death of his grandfather. Hence, he is not entitled to get partition in the property. Both these points are answered in negative.

21. Following the settled positions as enunciated by the Hon'ble Supreme Court and the Full Bench of this High Court, this Court is of the opinion that the claim of the plaintiff is barred under Section 8 of the Hindu Succession Act since he has been specifically excluded from inheriting the property belonged to his grandfather. Hence, the judgment and decree of the Court below deserves to be set aside and it is accordingly set aside. The appeal has to be allowed.

22. In the result, the appeal is allowed. No costs. The Suit in O.S.No.1698 of 1997, on the file of the II Additional City Civil Judge, Chennai, is dismissed without costs.

11.08.2010

Index : Yes

Internet : Yes

srm

S.PALANIVELU, J.