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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 ..  ..  Â½         Two daughters ..  ..  Â¼ 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  Â½  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.