Page 1

1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.3162-3163 OF 2010

SHREYA VIDYARTHI                ...APPELLANT

VERSUS

ASHOK VIDYARTHI & ORS.     ...RESPONDENTS

J U  D G M E N T

RANJAN GOGOI, J.

1.  The appellant before us is the 8th Defendant in Suit  

No.  630  of  1978  which  was  instituted  by  the  first-

respondent herein as the plaintiff.   The said suit filed for  

permanent injunction and in the alternative for a decree of  

partition  and separation  of  shares  by  metes  and  bounds  

was dismissed by the learned Trial Court.  In appeal, the  

High Court reversed the order of the Trial Court and decreed  

the  suit  of  the  respondent-plaintiff  with  a  further

Page 2

2

declaration  that  he  is  entitled  to  3/4th share  in  the  suit  

property,  namely,  House  No.  7/89,  Tilak  Nagar,  Kanpur  

whereas  the  appellant  (defendant  No.  8  in  the  suit)  is  

entitled to the remaining 1/4th share in the said property.  

Aggrieved, these appeals have been filed.

2. The relevant facts which will have to be noticed may be  

enumerated hereinunder.   

In the year 1937 one Hari Shankar Vidyarthi married  

Savitri  Vidyarthi,  the  mother  of  the  respondent-plaintiff.  

Subsequently,  in  the  year  1942,  Hari  Shankar  Vidyarthi  

was married  for  the  second time to  one Rama Vidyarthi.  

Out  of  the  aforesaid  second  wedlock,  two  daughters,  

namely,  Srilekha  Vidyarthi  and  Madhulekha  Vidyarthi  

(defendants 1 and 2 in Suit  No. 630 of 1978) were born.  

The  appellant-eighth  defendant  Shreya  Vidyarthi  is  the  

adopted daughter of Srilekha Vidyarthi (since deceased) and  

also the legatee/ beneficiary of a Will  left by Madhulekha  

Vidyarthi.  

Page 3

3

3. The dispute in the present case revolves around the  

question whether the suit property, as described above, was  

purchased by sale deed dated 27.9.1961 by Rama Vidyarthi  

from  the  joint  family  funds  or  out  of  her  own  personal  

funds.  The  suit  property  had  been  involved  in  several  

previous  litigations  between  the  parties,  details  of  which  

may now require a close look.

4. In the year 1968 Suit No. 147/1968 was instituted by  

Savitri  Vidyarthi  (mother  of  the  respondent-plaintiff)  

contending that the suit property being purchased from the  

joint family funds a decree should be passed against  the  

daughters  of  Rama  Vidyarthi  from  interfering  with  her  

possession.  This suit was dismissed under the provisions of  

Order  VII  Rule  11  CPC on account  of  failure  to  pay  the  

requisite court fee.  In the said suit the respondent-plaintiff  

had filed an affidavit dated 24.2.1968 stating that he had  

willfully relinquished all his rights and interests, if any, in  

the  suit  property.  The strong reliance placed on the said  

affidavit  on  behalf  of  the  appellant  in  the  course  of  the

Page 4

4

arguments advanced on her behalf needs to be dispelled by  

the fact that an actual reading of the said affidavit discloses  

that such renunciation was only in respect of the share of  

Rama  Devi  in  the  suit  property  and  not  on  the  entirety  

thereof.  Consistent with the above position is the suit filed  

by the respondent-plaintiff i.e. Suit No. 21/70/1976 seeking  

partition of the joint family properties.  The said suit was  

again dismissed under the provisions of Order VII Rule 11  

CPC  for  failure  to  pay  the  requisite  court  fee.   It  also  

appears that Rama Vidyarthi the predecessor-in-interest of  

the  present  appellant  had  filed  Suit  No.  37/1969  under  

Section 6 of the Specific Relief Act for recovery of possession  

of two rooms of the suit property which, according to her,  

had  been  forcibly  occupied  by  the  present  respondent-

plaintiff.   During  the  pendency  of  the  aforesaid  suit  i.e.  

37/1969  Rama Vidyarthi had passed away. The aforesaid  

suit was decreed in favour of the legal heirs of the plaintiff-

Rama  Vidyarthi  namely,  Srilekha  and  Madhulekha  

Vidyarthi on 4.2.1976.  

Page 5

5

5. It is in the aforesaid fact situation that the suit out of  

which the present appeals have arisen i.e. Suit No. 630 of  

1978  was  filed  by  the  present  respondent-plaintiff  

impleading  Srilekha Vidyarthi (mother of the appellant) and  

Madhulekha Vidyarthi (testator of the Will in favour of the  

appellant)  as  defendants  1 and 2 and seeking the  reliefs  

earlier noticed.   

6. The specific case pleaded by the plaintiff  in the suit  

was that the plaintiff’s father, Hari Shankar Vidyarthi, died  

on  14.3.1955  leaving  behind  his  two  widows  i.e.  Savitri  

Vidyarthi  (first  wife)  and  Rama  Vidyarthi  (second  wife).  

According  to  the  plaintiff,  the  second  wife  i.e.  Rama  

Vidyarthi had managed the day to day affairs of the entire  

family  which was living jointly.   The plaintiff  had further  

pleaded  that  Rama  Vidyarthi  was  the  nominee  of  an  

insurance  policy  taken  out  by  Hari  Shankar  Vidyarthi  

during  his  life  time  and  that  she  was  also  receiving  a  

monthly maintenance of a sum of Rs. 500/- on behalf of the

Page 6

6

family from   the “Pratap Press Trust, Kanpur” of which Hari  

Shankar Vidyarthi was the managing trustee.  In the suit  

filed, it was further pleaded that Rama Vidyarthi received a  

sum of Rs. 33,000/- out of the insurance policy and also a  

sum of Rs. 15,000/- from Pratap Press Trust, Kanpur as  

advance  maintenance  allowance.  It  was  claimed  that  the  

said amounts were utilized to purchase the suit property on  

27.9.1961.   It  was,  therefore,  contended  that  the  suit  

property is joint family property having been purchased out  

of joint family funds.  The plaintiff had further stated that  

all members of the family including the first wife, the first  

respondent  and  his  two  step  sisters  i.e.  Srilekha  and  

Madhulekha  Vidyarthi  had  lived  together  in  the  suit  

property.   As  the  relationship  between  the  parties  had  

deteriorated/changed  subsequently  and  the  plaintiff-

respondent  and  his  mother  (Savitri  Vidyarthi)  were  not  

permitted  to  enter  the  suit  property  and  as  a  suit  for  

eviction was filed against the first respondent (37 of 1969)  

by Rama Vidyarthi the instant suit for permanent injunction

Page 7

7

and partition was instituted by the respondent-plaintiff.

7. The plaintiff’s suit was resisted by both Srilekha and  

Madhulekha, primarily, on the ground that the suit property  

was purchased by their  mother Rama Vidyarthi  from her  

own funds and not from any joint family funds.  In fact, the  

two sisters, who were arrayed as defendants 1 and 2 in the  

suit, had specifically denied the existence of any joint family  

or the availability of any joint family funds.

8. The  Trial  Court  dismissed  the  suit  by  order  dated  

19.8.1997  citing  several  reasons  for  the  view  taken  

including the fact that respondent-plaintiff was an attesting  

witness to the sale deed dated 27.9.1961 by which the suit  

property  was  purchased  in  the  name of  Rama Vidyarthi;  

there was no mention in the sale deed that Rama Vidyarthi  

was representing the joint family or that she had purchased  

the suit property on behalf of any other person.  The learned  

Trial Court further held that in the year 1955 when Hari  

Shankar  Vidyarthi  had died there  was  no  joint  family  in

Page 8

8

existence and in fact no claim of any joint family property  

was raised until the suit property was purchased in the year  

1960-61.  The Trial Court was also of the view that if the  

other members of the family had any right to the insurance  

money such a claim should have been lodged by way of a  

separate  suit.  Aggrieved by the dismissal  of  the  suit,  the  

respondent-plaintiff filed an appeal before the High Court.

9. Certain facts and events which had occurred during  

the  pendency  of  the  appeal  before  the  High  Court  will  

require a specific notice as the same form the basis of one  

limb of the case projected by the appellant before us in the  

present appeal, namely, that the order of the High Court is  

an  ex-parte  order  passed  without  appointing  a  legal  

guardian for the appellant for which reason the said order is  

required to be set aside and the matter remanded for a de  

novo consideration by the High Court.

10. The first significant fact that has to be noticed in this  

regard  is  the  death  of  Madhulekha  Vidyarthi  during  the

Page 9

9

pendency  of  the  appeal  and  the  impleadment  of  the  

appellant  as  the  8th respondent  therein  by  order  dated  

31.08.2007. This was on the basis that the appellant is the  

sole legal heir of the deceased Madhulekha.  The said order,  

however,  was  curiously  recalled  by  the  High  Court  by  

another order dated 10.10.2007. The next significant fact  

which would require notice is that upon the death of her  

mother Srilekha Vidyarthi, the appellant-defendant herself  

filed  an application for  pursuing  the  appeal  in  which an  

order was passed on 16/18.05.2009 to the effect that the  

appellant is already represented in the  proceedings through  

her  counsel  (in  view  of  the  earlier  order  impleading  the  

appellant as legal heir of Madhulekha). However, by the said  

order the learned counsel was given liberty to obtain a fresh  

vakalatnama from the appellant which, however, was not so  

done.   In  the  aforesaid  fact  situation,  the  High  Court  

proceeded to consider the appeal on merits and passed the  

impugned  judgment  on  the  basis  of  consideration  of  the  

arguments advanced by the counsel appearing on behalf of

Page 10

10

the  appellant  at  the  earlier  stage,  namely,  one  Shri  A.K.  

Srivastava and also on the basis of the written arguments  

submitted on behalf of the deceased Srilekha Vidyarthi.  It  

is in these circumstances that the appellant has now, inter  

alia, contended that the order passed by the High Court is  

without appointing any guardian on her behalf and contrary  

to the provisions of Order XXXII Rules 3, 10 and 11 of the  

CPC.   

11. Insofar as the merits of the appeal are concerned, the  

High Court took the view that on the facts before it, details  

of  which will  be noticed in due course, there was a joint  

family in existence in which the second wife Rama Vidyarthi  

had played a predominant role and that the suit property  

was  purchased  out  of  the  joint  family  funds  namely  the  

insurance money and the advance received from the Pratap  

Press Trust, Kanpur.  Insofar as the devolution of shares is  

concerned, the High Court took the view that following the  

death of Hari Shankar Vidyarthi, as the sole surviving male

Page 11

11

heir, the respondent-plaintiff became entitled to 50% of the  

suit  property  and  the  remaining  50% was  to  be  divided  

between the two wives of Hari Shankar Vidyarthi in equal  

proportion.  Srilekha  and  Madhulekha  Vidyarthi,  i.e.  

defendants 1 and 2 in the suit, as daughters of the second  

wife, would be entitled to share of Rama Vidyarthi, namely,  

25% of  the  suit  property.   On their  death,  the  appellant  

would  be  entitled  to  the  said  25%  share  whereas  the  

remaining 25% share (belonging to the first wife) being the  

subject  matter  of  a  Will  in  favour  of  her  minor  grand-

children (sons of the respondent-plaintiff), the respondent-

plaintiff would also get the aforesaid 25% share of the suit  

property on behalf of the minors. Accordingly, the suit was  

decreed and the order of dismissal of the suit was reversed.  

12. The  aforesaid  order  of  the  High  Court  dated  

12.08.2009 was attempted to be recalled by the appellant-

8th defendant by filing an application to the said effect which  

was also dismissed by the High Court by its order dated

Page 12

12

24.11.2009.   Challenging both the abovesaid orders of the  

High Court, the present appeals have been filed.  

13. Having heard learned counsels for the parties, we find  

that two issues in the main arise for determination in these  

appeals. The first is whether the High Court was correct in  

passing the order dated 24.11.2009 on the recall application  

filed  by  the  appellant  and  whether,  if  the  appellant  had  

really been proceeded ex-parte thereby rendering the said  

order untenable in law, as claimed, should the matter be  

remitted to the High Court for reconsideration.  The second  

question  arising  is  with  regard  to  the  order  dated  

12.08.2009 passed by the High Court in First Appeal No.  

693 of 1987 so far as the merits thereof is concerned.   

14. The detailed facts in which the appellant-8th defendant  

came  to  be  impleaded  in  the  suit  following  the  death  of  

Madhulekha Vidyarthi (defendant No. 2) and thereafter on  

the  death  of  Srilekha  Vidyarthi  (defendant  No.  1)  has  

already been seen.   From the facts recorded by the High  

Court in its order dated 24.11.2009 it is clear and evident

Page 13

13

that the appellant had participated in the proceeding before  

the  High  Court  at  various  stages  through  counsels.  

Therefore, there is no escape from the conclusion that the  

order passed in the appeal  was not  an ex-parte order as  

required to be understood in law. The appellant was already  

on  record  as  the  legal  heir  of  Madhulekha  Vidyarthi  

(defendant No. 2) and was represented by a counsel.  The  

High court had passed its final order after hearing the said  

counsel and upon consideration of the written arguments  

filed in the case.  In its order dated 24.11.2009 the High  

Court  has  observed  that  full  opportunity  of  hearing  on  

merits was afforded to the appellant.  Even before us, the  

appellant  has  been heard  at  length  on the  merits  of  the  

case.   In  these  circumstances  there  can  hardly  be  any  

justification to remand the matter to the High Court for a  

fresh consideration by setting aside the impugned order.

15. Insofar as the merits of the order of the High Court is  

concerned,  the sole question involved is  whether the suit  

property  was  purchased  by  Rama  Vidyarthi,  (defendant

Page 14

14

No.1) out of the joint family funds or from her own income.  

The affidavit of Rama Vidyarthi in Suit No. 147 of 1968 filed  

by Savitri Vidyarthi discloses that she was looking after the  

family as the Manager taking care of the respondent No.1,  

her step son i.e. the son of the first wife of Hari Shankar  

Vidyarthi.  In the said affidavit, it is also admitted that she  

had received the  insurance money following the  death of  

Hari  Shankar  Vidyarthi  and  the  same  was  used  for  the  

purchase of the suit property along with other funds which  

she had generated on her own. The virtual admission by the  

predecessor-in-interest  of  the  appellant  of  the  use  of  the  

insurance money to acquire the suit property is significant.  

Though the claim of absolute ownership of the suit property  

had been made by Rama Vidyarthi in the aforesaid affidavit,  

the said claim is belied by the true legal position with regard  

to  the  claims/entitlement  of  the  other  legal  heirs  to  the  

insurance  amount.  Such  amounts  constitute  the  

entitlement of all the legal heirs of the deceased though the  

same may  have  been received  by  Rama Vidyarthi  as  the

Page 15

15

nominee of her husband. The above would seem to follow  

from the view expressed by this Court in Smt. Sarbati Devi  

&  Anr.  vs.  Smt.  Usha  Devi1 which  is  extracted  below.  

(Paragraph 12)  

“12. Moreover  there is  one other  strong cir- cumstance  in  this  case  which dissuades  us  from taking a view contrary to the decisions of  all other High Courts and accepting the view  expressed by the Delhi High Court in the two  recent judgments delivered in the year 1978  and in the  year  1982.  The Act  has  been in  force from the year 1938 and all along almost  all  the High Courts in India have taken the  view that  a  mere  nomination effected under  Section 39 does not deprive the heirs of their  rights in the amount payable under a life in- surance policy. Yet Parliament has not chosen  to make any amendment to the Act. In such a  situation  unless  there  are  strong  and  com- pelling reasons to hold that all these decisions  are  wholly  erroneous,  the  Court  should  be  slow  to  take  a  different  view.  The  reasons  given by the Delhi High Court are unconvinc- ing. We, therefore, hold that the judgments of  the Delhi High Court in Fauza Singh case and  in  Uma Sehgal case do not lay down the law  correctly.  They  are,  therefore,  overruled.  We  approve the views expressed by the other High  Courts on the meaning of  Section 39 of  the  Act  and hold that  a mere nomination made  under Section 39 of the Act does not have the  

1 1984 (1) SCC 424

Page 16

16

effect of conferring on the nominee any benefi- cial interest in the amount payable under the  life insurance policy on the death of the as- sured.  The  nomination  only  indicates  the  hand  which  is  authorised  to  receive  the  amount, on the payment of which the insurer  gets a valid discharge of its liability under the  policy. The amount, however, can be claimed  by the heirs of the assured in accordance with  the law of succession governing them.”

 16.  The fact that the family was peacefully living together  

at  the time of  the demise of  Hari  Shankar Vidyarthi;  the  

continuance of such common residence for almost 7 years  

after purchase of the suit property in the year 1961; that  

there  was  no  discord between the  parties  and there  was  

peace and tranquility in the whole family were also rightly  

taken note of by the High Court as evidence of existence of a  

joint family. The execution of sale deed dated 27.9.1961 in  

the  name  of  Rama  Vidyarthi  and  the  absence  of  any  

mention thereof that she was acting on behalf of the joint  

family has also been rightly construed by the High Court  

with reference to the young age of the plaintiff-respondent  

(21 years) which may have inhibited any objection to the

Page 17

17

dominant position of Rama Vidyarthi in the joint family, a  

fact  also  evident  from  the  other  materials  on  record.  

Accordingly,  there  can  be  no  justification  to  cause  any  

interference with the conclusion reached by the High Court  

on the issue of existence of a joint family.

17. How could Rama Vidyarthi act as the Karta of the HUF  

in view of the decision of this Court in  Commissioner of  

Income  Tax  vs.  Seth  Govindram  Sugar  Mills  Ltd.  2    

holding that a Hindu widow cannot act as the Karta of a  

HUF which role the law had assigned only to males who  

alone could be coparceners (prior to the amendment of the  

Hindu Succession Act in 2005).  The High Court answered  

the question in favour of the  respondent-plaintiff by relying  

on the decision of this Court  in Controller of Estate Duty,  

Madras  Vs.  Alladi  Kuppuswamy3 wherein  the  rights  

enjoyed  by  a  Hindu  widow  during  time  when the  Hindu  

Women’s  Rights  to  Property  Act,  1937  remained  in  force  

were traced and held to be akin to all rights enjoyed by the  

2 AIR 1966 SC 24 3 [1977 (3) SCC 385]

Page 18

18

deceased husband as a coparcener though the same were  

bound by time i.e. life time of the widow (concept of limited  

estate) and without any authority or power of alienation. We  

do not consider it necessary to go into the question of the  

applicability  of  the ratio  of  the  decision in  Controller of  

Estate Duty, Madras (supra) to the present case inasmuch  

as in the above case the position of a Hindu widow in the  

co-parcenary and her right to co-parcenary property to the  

extent  of  the  interest  of  her  deceased  husband  was  

considered in the context of the specific provisions of  the  

Estate  Duty Act,  1953.  The issue(s)  arising  presently  are  

required  to  be  answered  from  a  somewhat  different  

perspective.    

18. While there can be no doubt that a Hindu Widow is not  

a  coparcener  in  the  HUF of  her  husband and,  therefore,  

cannot  act  as  Karta  of  the  HUF  after  the  death  of  her  

husband the two expressions i.e. Karta and Manager may  

be understood to be not  synonymous and the expression  

“Manager” may be understood as denoting a role distinct

Page 19

19

from that of the Karta.   Hypothetically, we may take the  

case of HUF  where the male adult coparcener has died and  

there is no male coparcener surviving or as in the facts of  

the  present  case,  where  the  sole  male  coparcener  

(respondent-plaintiff - Ashok Vidyarthi) is a minor.  In such  

a situation obviously the HUF does not come to an end.  The  

mother of the male coparcener can act as the legal guardian  

of the minor and also look after his role as the Karta in her  

capacity as his (minor’s) legal guardian.  Such a situation  

has been found, and in our opinion rightly, to be consistent  

with the law by the Calcutta High Court in  Sushila Devi  

Rampuria v. Income Tax Officer and Anr.4 rendered in  

the  context  of  the  provisions  of  the  Income Tax Act  and  

while determining the liability of such a HUF to assessment  

under  the  Act.  Coincidently  the  aforesaid  decision  of  the  

Calcutta  High  Court  was  noticed  in  Commissioner  of  

Income  Tax  vs.  Seth  Govindram  Sugar  Mills  Ltd.   

(supra).  

4 AIR 1959 Cal 697

Page 20

20

19. A  similar  proposition  of  law  is  also  to  be  found  in  

decision of the Madhya Pradesh High Court in Dhujram v.  

Chandan Singh & Ors.5 though, again, in a little different  

context.  The High Court had expressed the view that the  

word  ‘Manager’  would  be  consistent  with  the  law  if  

understood  with  reference  to  the  mother  as  the  natural  

guardian and not as the Karta of the HUF.

20. In  the  present  case,  Rama  Vidyarthi  was  the  step  

mother of the respondent-plaintiff -Ashok Vidyarthi who at  

the time of the death of his father - Hari Shankar Vidyarthi,  

was  a  minor.   The  respondent  plaintiff  was  the  only  

surviving male coparcener after the death of Hari Shankar  

Vidyarthi. The materials on record indicate that the natural  

mother  of  Ashok  Vidyarthi,  Smt.  Savitri  Vidyarthi,  had  

played a submissive role in the affairs of the joint family and  

the  step mother,  Rama Vidyarthi  i.e.  second wife  of  Hari  

Shankar Vidyarthi had played an active and dominant role  

in  managing  the  said affairs.  The aforesaid role  of  Rama  

5 1974 MPL J554

Page 21

21

Vidyarthi was not opposed by the natural  mother,  Savitri  

Vidyarthi. Therefore, the same can very well be understood  

to be in her capacity as the step mother of the respondent-

plaintiff-Ashok Vidyarthi and, therefore, consistent with the  

legal position which recognizes a Hindu Widow acting as the  

Manager of the HUF in her capacity as the guardian of the  

sole  surviving  minor  male  coparcener.  Such  a  role  

necessarily  has  to  be  distinguished  from that  of  a  Karta  

which position the Hindu widow cannot assume by virtue of  

her dis-entitlement to be a coparcener in the HUF of  her  

husband.  Regrettably  the  position  remain  unaltered  even  

after the amendment of the Hindu Succession Act in 2005.

21. In the light of the above, we cannot find any error in  

the ultimate conclusion of the High Court on the issue in  

question though our reasons for  the aforesaid conclusion  

are somewhat different.   

22. Before  parting  we  may  note  that  the  history  of  the

Page 22

22

earlier  litigation  between  the  parties  involving  the  suit  

property would not affect the maintainability of the suit in  

question (630 of 1978).  Suit No.37 of 1969 filed by Rama  

Vidyarthi was a suit under Section 6 of the Specific Relief  

Act whereas Suit No.147 of 1968 and Suit No. 21/70/1976  

filed  by  first  wife  Savitri  Vidyarthi  and  Ashok  Vidyarthi,  

respectively, were dismissed under Order VII Rule 11 CPC  

on  account  of  non-payment  of  court  fee.   In  these  

circumstances, the suit out of which the present appeal has  

arisen i.e.  Suit  No. 630 of  1978 was clearly maintainable  

under Order VII Rule 13 CPC.   

23. The apportionment of shares of the parties in the suit  

property made by the High Court, in the manner discussed  

above, also does not disclose any illegality or infirmity so as  

to justify any correction by us. It is our considered view that  

having held and rightly that the suit property was a joint  

family property, the respondent-plaintiff was found entitled  

to  seek  partition  thereof  and  on  that  basis  the

Page 23

23

apportionment of  shares in the suit property between the  

plaintiff  and  the  contesting  eighth  defendant  was  rightly  

made  by  the  High  Court  in  accordance  with  the  reliefs  

sought in the suit.

24. For the aforesaid reasons, we do not find any merit in  

these appeals,  the same are being accordingly  dismissed.  

However, in the facts of the case we leave the parties to bear  

their own costs.

…….....................,J.                                                (RANJAN GOGOI)

……....................,J.                                              (N.V. RAMANA)

NEW DELHI DECEMBER 16, 2015.