Partly allowed

Sreepathi Baruvathaya v. Shankaranarayana Baruvathaya

Kerala HC12 Feb 2013AS/313/1991

Case brief

AI extract

What is this about?

This appeal challenged the refusal to order partition of specific immovable properties. The High Court held that co-parceners cannot alienate or gift undivided shares in joint Hindu family property, and such transactions benefit all members, thus allowing partition of the items in question.

What did the court decide?

Cross objections dismissed; appeal partly allowed; preliminary decree modified to order partition of schedule B items 6 and 10.

Sreepathi Baruvathaya Vs Shankaranarayana Baruvathaya — Partition | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE B.KEMAL PASHA

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TUESDAY, THE 12TH DAY OF FEBRUARY 2013/23RD MAGHA 1934

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AS.No. 313 of 1991 (D) & CROSS OBJECTION

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AGAINST THE JUDGMENT AND DECREE DATED 29.11.90 IN OS.37/1988 of SUB COURT, KASARAGOD DISTRICT

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APPELLANT : PLAINTIFF IN LOWER COURT

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SREEPATHI BARUVATHAYA, S/O. RANGAYYA BARUVATHAYA, CULTIVATOR AND TEACHER, SREEKRISHNA NIVAS, BADAJE, KASARAGOD TALUK (DIED)

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*IMPLEADED AS THE SECOND ADDITIONAL APPELLANT

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*2. KRISHNARAJA BARUVATHAYA, S/O. LATE SREEPATHI BARUVATHAYA, HINDU, CULTIVATOR AND STUDENT, AGED 20 YEARS, RESIDING AT SREEKRISHNA NIVAS IN BADAJE OF BADAJE VILLAGE, KASARAGOD TALUK AND DISTRICT.

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*IMPLEADED AS LR OF THE DECEASED APPELLANT AS PER ORDER DT. 12/8/02 IN CMP NO. 4105/2002.

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BY SENIOR ADVOCATE SRI.M.C.SEN BY ADV. SRI.SREELAL N. WARRIER SRI.AVM.SALAHUDIN

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RESPONDENTS: DEFENDANTS IN LOWER COURT :

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*1. SHANKARANARAYANA BARUVATHAYA, S/O. RANGAYYA BARUVATHAYA, BADAJE, KASARAGOD TALUK (DIED, LRS IMPLEADED)

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**2. RANGAYYA, S/O. SHANKARANARAYANA BARUVATHAYA OF DO. (RECORDED)

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...2/-

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AS.No. 313 of 1991 (D) & CROSS OBJECTION -2-

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3. SADANANDA ALIAS S.B. RAO, S/O. BHAGIRATHI, RESIDING AT E 1-C7-C10-SECTOR 10, PHASE II, NERULE, NEW BOMBAY-400706.

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4. SEETHARATHNA, S/O. RANGAYYA BARUVATHAYA, BADAJE, KASARAGOD TALUK.

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**5. SUNANDA, W/O. JANARDHANA RAO, RESIDING NEAR KADIRI TEMPLE, POST KADIRI, MANGALORE TOWN (*DIED, LRS IMPLEADED)

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6. B. SADASHIVA BARUVATHAYA, S/O. RANGAYYA BARUVATHAYA, RESIDING AT 007 PRAGATHI SOCIETY, PLOT NO. 65A, J.B. NAGAR, ANDHERI EAST, BOMBAY - 59, MAHARASHTRA STATE.

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**7. KESAVA BARUVATHYA, MINOR, AGED 12 YEARS, REPRESENTED BY THE GUARDIAN 1ST DEFENDANT, SHANKARANARAYANA BARUVATHAYA, BADAJE, KASARAGOD TALUK. (RECORDED)

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**THE 2ND AND 7TH RESPONDENTS ARE RECORDED AS SOME OF THE LEGAL REPRESENTATIVES OF DECEASED 1ST RESPONDENT AS PER ORDER

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DT. 22/8/05 IN CMP 1825/96.

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*ADDL. R8 TO R11 ARE IMPLEADED - LRS OF R1

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--------------------------------------------------------------------

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*8. GULABI, WIDOW OF SANKARANARAYANA BARUVATHAYA, BADAJE, KASARGOD TALUK.

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*9. BALAKRISHNA BARUVATHAYA (MINOR, 16 YEARS) S/O. SANKARANARAYA BARUVATHAYA, -DOREPRESENTED BY 8TH RESPONDENT.

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*10. KALPAVALLI, D/O. -DO- AND W/O. SATHISH SHARMA, C/O. UMAMAHESWARA DEVASTHANAM, KUMBDAJE VILLAGE, P.O. MULLERI, KASARAGOD.

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*11. VATHSALA, D/O. SANKARANARAYANA BARUVATHAYA BADAJE KASARAGOD TALUK.

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*THE RESPONDENTS 8 TO 11 WHO ARE THE OTHER LEGAL REPRESENTATIVES OF DECEASED 1ST RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENTS 8 TO 11 AS PER ORDER DT. 22/8/05 IN CMP 1825/96.

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...3/-

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AS.No. 313 of 1991 (D) & CROSS OBJECTION -3-

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***ADDL. R12, R13 ARE IMPLEADED - LRS OF DECEASED R5

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*12. RAVIPRASAD RAO, S/O. SUNANDA, RESIDING AT SALALAYA COMPOUND PADUNITHU, MUNDANA, POST BIJAI, MANGALORE - 4.

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*13. DURGAPRASAD RAO, -DO- -DO-

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***ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED R5 AS PER ORDER DATED 16.10.07 IN IA 3776/07.

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R5 BY SENIOR ADVOCATE SRI.S.V.BALAKRISHNA IYER BY ADV. SRI.N.SUBRAMANIAN BY ADV. SRI.M.S.NARAYANAN

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THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 12-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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THOTTATHIL B.RADHAKRISHNAN & B.KEMAL PASHA, JJ.

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A.S.No.313 of 1991 &

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Cross Objection in A.S.No.313 of 1991 .................................................................... Dated this the 12^th day of February, 2013.

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J U D G M E N T

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Thottathil B.Radhakrishnan, J.

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These appeal and cross objection arise from a suit for partition. It is not in dispute that the parties are governed by the Mithakshara Law of Inheritance as amended by the Hindu Succession Act, 1956. There is also no dispute raised before us regarding the number of shares due to the parties as determined as per the impugned preliminary decree. The plaintiff's appeal is confined to the refusal of the court below to order partition of items 6, 10 & 11 in B schedule and C schedule immovable properties. The cross objection by the 1^st defendant is only on the question of profits.

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We have heard the learned counsel for the appellant

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AS 313/91

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-2-

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and the learned counsel for the contesting 1^st respondent (1^st defendant).

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As regards item 6 in plaint B schedule, the 1^st defendant held out Ext.B4 release by Sitarama; a pre-deceased brother, that is to say, one, who died before their late father Rangayya Baruvathaya. By now, it is well settled by various decisions ranging from AIR 1945 Madras 142 (F.B.) (Chella Subbanna v. Chella Balasubbareddi), XXVII ILR Madras 162 (Rottala Runganatham Chetty v. Pulicat Ramasami Chetti) down to 1988(1) KLJ 99 rendered by this Court in H.Krishna & Others v. H.R.Ratnam & another, that a member of a joint Hindu family governed by the Mithakshara Law cannot give his interest in the family estate to one of several co-parceners, if they remain joint in estate. Any such relinquishment of interest shall operate for the benefit of all the members of the joint Hindu family concerned. This is all the more so because, it is not competent to an individual member of a Hindu family

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AS 313/91

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-3-

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to alienate, by way of gift, his undivided share or any portion thereof; and such alienation, if made, is void in toto. As held in Srinivasa Padayachi v. Parvathi Ammal (1969(2) MLJ 597), it

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is well settled law that under the Mithakshara School of Hindu Law, no co-parcener can dispose his undivided interest in coparcenery property by way of gift. Such a transaction will be void in toto and will not bind even the donor or his share of the property. Applying the law as so noticed, the finding of the court below that plaint B schedule item 6 is not available for partition, is liable to be set aside.

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Plaint B schedule item 10 was claimed by the 1^st defendant to be exclusively belonging to him on the basis of a purchase certificate issued by the Land Tribunal. Looking at the records, we see that Ext.B6 contains the findings which are stated to be preliminary. Notwithstanding the fact that the mere preliminary findings by themselves could not be conclusive in view of the clear terms of the Kerala Land

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AS 313/91

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-4-

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Reforms Act, we are of the view that even if there is a purchase certificate, that does not tilt the case in favour of the 1^st defendant, having regard to the fact that the purchase certificate by one of the co-parceners of a Hindu joint family will inure to the benefit of all the members of that family, as held by this Court in Kundathodi Saidali v. Kappil Amina Umma, (1984 KLJ 764). Applying that decision, with which we are in complete agreement, the finding of the court below as regards plaint B schedule item 10 is also liable to be set aside.

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Plaint B schedule item 11 has been rightly excluded by the court below holding that the said property, even going by the plaintiff’s version, is one that holds the family temple.

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Insofar as plaint C schedule is concerned, the clear finding of the court below is that the 1^st defendant had intentions and purposes in relation to that item as if it is exclusively belonging to him, and there was no blending, and

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AS 313/91

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-5-

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merely because the 1^st defendant had not kept separate accounts, he never intended to abandon his separate right in plaint C schedule properties. Added to this, it is a matter of record that the 1^st defendant had sold 70 cents out of that item in favour of one Baby as per a registered sale deed and thereafter, sold another 4 cents to one Aithu Shettigars. Ext.B5 is the certified copy of the sale deed in favour of Baby Hegde. That deed is accepted and acted upon by the court below. We, therefore, deem it appropriate to hold that item C schedule properties are not available for partition. The findings in this regard by the court below do not call for any interference.

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