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Krishnamoorthy Gounder v. Sitarama Gounder - A.S.No.567 of 1992 and A.S.No. 373 of 2002  RD-TN 512 (24 July 2002)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
THE HON'BLE MR. JUSTICE P. SHANMUGAM
THE HON'BLE MR. JUSTICE K. SAMPATH
A.S.No.567 of 1992 and A.S.No. 373 of 2002
Transfer A.S.Nos.217 and 218 of 2002
Krishnamoorthy Gounder ... Appellant in both A.Ss.and Transfer A.Ss. Vs.
1. Sitarama Gounder
S/o Krishnaswamy Gounder,
No.4/29, Veerampattinam Road,
Pondicherry. ... 1st Respondent in both A.Ss. 2. Radhakrishnan
S/o Sitarama Gounder
No.4/29, Veerampattinam Road,
Pondicherry. ... 2nd Respondent in both A.Ss. 3. Shantha Ammal
Mistress of Sitarama Gounder,
No.4/29, Veerampattinam Road,
Pondicherry. ... 3rd Respondent in A.S.No.567/92 and 4. Minor Krishnaveni – Rep.by
3rd respondent, mother and
guardian, 4/29, Veerampattinam Road,
Pondicherry. ... 4th Respondent in A.S. No.567/92, 3rd respondent in A.S.No.373/2002 and the only respondent in Tr.A.S.No.217/2002. For Appellant: ... Mr.K. Kannan
for Mr.T. Dhanyakumar
For Respondents:.. Mr.T. Murugesan,
Senior Counsel for
The appeals in A.S.Nos.567/92 and 373/2002 and the Transfer appeals in Tr.A.S.Nos.217 and 218 of 2002 are filed against the common judgment and decree dated 21.8.1991 made in O.S.No.25/86, O.S.No.352/88, O.S.No.351/88 and O.S.No.353/88 on the file of the learned Additional Sub Court, Cuddalore.
K. SAMPATH, J.
The above appeals arise out of a common judgment in four suits tried jointly by the learned Additional Subordinate Judge, Cuddalore.
2. A.S.567/92 arises out of O.S.No.25/86. That is a suit for partition and separate possession or in the alternative, for permanent injunction restraining the first defendant therein from in any manner encumbering, alienating or dealing with the suit properties during his life time and for future profits.
3. A.S.No.373/2002, which arises out of O.S.No.359/85 on the file of the Sub Court, Pondicherry,/ O.S.No.352/88 on the file of the Sub Court, Cuddalore, is for a declaration that the plaintiff therein is the absolute owner and possessor of the estate of his father Krishnasamy Gounder and for a permanent injunction restraining the defendants from interfering with his possession and enjoyment.
4. Transfer A.S.No.217/2002 arises out of O.S.No.216/87 on the file of the Sub Court, Pondicherry/O.S.No.353/88 on the file of the Sub Court, Cuddalore and Transfer A.S.No.218/2002 arises out of O.S.No.5 24/85 on the file of the Sub Court, Pondicherry,/ O.S.No.351/88 on the file of the Sub Court, Cuddalore.
5. The main suit is O.S.No.25/86. The plaintiff is one Krishnamoorthy Gounder, son of the first defendant Sitarama Gounder. The fifth defendant, who died pending suit, was the mother of the plaintiff and wife of the first defendant. The third defendant Shantha Ammal claimed to be the second wife of the first defendant Sitarama Gounder and defendants 2 and 4, viz. Radhakrishnan and minor Krishnaveni are the children of defendants 1 and 3.
6. Out of the four suits, O.S.No.25/86 which is the most comprehensive suit, was filed before the Sub Court, Cuddalore. The other suits were filed before the Sub Court, Pondicherry. Pursuant to an order by this Court, they were all transferred to the file of the Subordinate Judge's Court, Cuddalore, to be tried along with O.S.No.256/86. They were all renumbered as already noted.
7. O.S.No.351/88 was filed by the fourth defendant minor Krishnaveni represented by her mother, the second defendant Shantha Ammal, for a declaration that she is the absolute owner of the suit property, for a mandatory injunction to the defendant Krishnamoorthy Gounder to remove the firewood from the suit property and for a permanent injunction restraining Krishnamoorthy Gounder from interfering with her possession and enjoyment of the property.
8. O.S.No.352/88 was filed by Krishnamoorthy Gounder for declaring him to be the absolute owner of the schedule item of the property, for a direction to remove the firewood from the suit property and for a permanent injunction restraining him from burning firewood for the purpose of preparing charcoal.
9. O.S.No.353/88 was filed by Shantha Ammal and Radhakrishnan for a declaration that they are absolute owners and possessors of the properties described in the schedule to the plaint and from in any manner interfering with their possession and enjoyment of the property.
10. It is not necessary to go into elaborate details regarding the cases of the respective parties. The main questions calling for consideration are whether the properties subject matter of the suit O.S. No.25/86 are the joint family properties of the plaintiff Krishnamoorthy and the first defendant Sitarama Gounder and whether the plaintiff can have partition and separate possession of the properties or in the alternative whether the plaintiff is entitled to have a permanent injunction restraining Sitarama Gounder from in any manner encumbering, alienating or dealing with the suit properties during his life time.
11. It is conceded that the parties are not governed by the Mitakshara School of Hindu Law, but by the customary Hindu Law obtaining in Pondicherry.
12. Before dealing with the main question, let us now refer to certain facts, over which there can be no controversy.
13. Parties will be referred to as per their ranks in O.S.No.25/86 or by their names depending upon the context. The plaintiff Krishnamoorthy Gounder is the son of the first defendant Sitarama Gounder and his legally wedded wife Sethu Ammal, the fifth defendant in the suit. The third defendant Shantha Ammal, a native of Kerala, became friendly with the first defendant and they were living together and out of their association, defendants 2 and 4 were born. The first defendant Sitarama Gounder set up a marriage between him and the third defendant Shantha Ammal sometime in 1964. As to whether there was a marriage, was put in issue before the lower Court and it found that since the claim of Sitarama Gounder was that he married the third defendant Shantha Ammal during the subsistence of his marriage with the fifth defendant Sethu Ammal, it could not be said that it was a valid marriage. This finding has become final the same not having been challenged by the parties concerned. The suit A Schedule properties consist of 13 items, B Schedule 47 items and C Schedule 7 items. They include properties belonging to the first defendant's grandfather Ponnusamy, his father Krishnasamy and the properties acquired by the first defendant and either settled or gifted by him to defendants 2, 3 and 4.
14. According to the plaintiff Krishnamoorthy Gounder, they are all ancestral properties and the first defendant had no right to deal with them in any manner whatsoever. In any event, those transactions, gift, settlement, etc. are not binding on him. So far as the first defendant is concerned, it is his specific case that the properties are his absolute properties and that there can be no partition and not even an interdiction regarding his dealing with those properties.
15. Mr. Kannan, learned Counsel for the appellant Krishnamoorthy Gounder, submitted that the properties were either ancestral properties or properties acquired with joint family funds, that the father had been indiscriminately dealing with the properties, that the plaintiff was entitled to partition and that in any event, there should be some check on the liberalities by an interdiction. The learned Counsel relying on the analogy of the practice by the reversioners under Mitakshara Hindu Law getting declaration and injunction against the limited female owners, submitted that similar reliefs could be granted in the instant case also.
16. Mr.T. Murugesan, learned Senior Counsel appearing for the contesting respondents, submitted that under the French Customary System of Hindu Law, a person cannot claim any right in the properties of his father during his life time, that only after the life time of the father, he could challenge any gratuitous transfer on the principle of legitim. According to the learned Senior Counsel, the plaintiff Krishnamoorthy does not have any present right to challenge the donations of the first defendant Sitarama Gounder. The learned Senior Counsel referred to Sanner Hindu Law translation and also Article by Justice DAVID ANNOUSSAMY on French Legal System published by the Institute of Comparative Law and Jurisprudence, National Law School of India University, Bangalore.
17. In Sanner on Hindu Law it is stated as follows: "The theory of common property of father and sons so far as the ancestral patrimony is concerned, is abandoned in our Establishments of the Coromandel Coast. It is to the chief of the family that belongs in reality, in the juridical sense of the word, the properties deriving from ancestors and he is alone qualified to exercise by principle, the right of free disposition which confers on him his title as owner. It is admitted that the sons have rights, if not in presenti, at least in future on those properties, i.e. A reserve which they can claim at the opening of their father's succession, against those who have benefitted by the liberalities of the deceased. So far as the alienation by onerous title agreed on by the father, even for his exclusive benefit they are out of control of the sons. Save, be it understood,that, if it concerns about sham deeds and without prejudice to the right which the French legislation grants to interested parties to provoke the interdiction of their father, or to provide him with a judicial counsel, in the case provided by the Code Civil.
The same observation applies to the suit for partition, which the commentators of Mitakshara gave formerly to the son when, due to mental weakness, or by prodigality, the chief of the family frittered away the ancestral patrimony. The interdiction or the appointment of a judicial counsel being unknown procedures in olden days, it was necessary to avoid the dangers of an administration more disastrous to the sons, by allowing them to ask immediately their share in family patrimony. But now as they have the rights to resort to the means of protection, defined by Chapters I and II of Title XI of Code Civil, they cannot be allowed to proceed by way of partition suit, i.e.to exercise rights which did not belong to them till the father is alive."
Same is the case with regard to self acquisition of the father. As regards the acquisition of his sons, the presumption is that they are also family properties and it is for the sons to establish that the acquisition by onerous title was realised not only with the income personal to his sons, but also that they were never merged with the family patrimony. Justice DAVID ANNOUSSAMY reiterates that the exclusive right of a Hindu father in Pondicherry is recognised,
"in respect of all properties whether ancestral or self acquired and the denial to the son of any right by birth or any right to ask for partition during the life time of his father. Till his death the father is the sole owner of all the properties with full right of disposal for valuable consideration."
18. The next point is as to what the son can do after the life time of the father in respect of gratuitous transfers. That is where the principle of legitim steps in. What is legitim?
19. To quote Justice DAVID ANNOUSSAMY "French jurists however have found that the father could give away only a portion of his properties called his disposable quota and the balance, constituted the legitim of the heirs. The principle of legitim for direct heirs as has been a consistent principle in the legal history in France and the same was affirmed with force and precision in the Code Civil. It is how the principle of legitim is a familiar one for Hindus in Pondicherry, whereas it is unknown in the rest of India. .... Till his death the father is the sole owner of all the properties with full right of disposal for consideration. The legitim is the portion of the estate which a person cannot dispose of by an act of liberality, if he has heirs in direct line, who are called accordingly forced heirs. When a person indirectly deprives his forced heirs of the amount of property which was in their legitimate expectation, by disposing away without consideration the totality or a substantial part of his estate, those heirs are entitled to show that their legitim had been encroached upon and to have it restored by way of reduction of excessive liberalities."
20. The learned Judge has referred to the opinion of Sanner in his Droit Civil Applicable aux Hindous, 1916 in the following terms: "preservation of the properties in the family was at the root of the real estate regime and successoral law in India and that, therefore, legitim was a necessary part of that law. He observed that there was no obstacle in applying integrally the provisions of Code Civil in the matter of legitim to Hindus.
Thus, it is seen that the Courts in Pondicherry have consistently allowed to the children the right to attack the acts of liberalities of their parents when such acts had the effect of depriving them substantially of their legitimate right to succeed and that in the course of time the very principle of legitim as understood in French law has come to be accepted. The sons have a right of legitim in the property of their father and the daughters have the same right in the property of their mother. The French jurists did not make any distinction between ancestral properties and self acquired properties, except Laude who stated that the father could not dispose of the immovables left by the ancestors at his pleasure and that the children had the right to attack the excessive liberalities by invoking their right of legitim, that in respect of self acquired properties the father had the right of disposal subject to the right of children to attack it as in the Roman law ( querela inofficiosi testamenti) in case they were deprived by the father without valid reason. Even this author, only made a difference only in respect of the remedy but the right of disposal was limited in both kinds of properties. The right of legitim is allowed on the totality of the estate. This is in harmony with the full powers conferred on the father on both kinds of properties.
21. Dealing with the scope of the legitim under the heading "The Beneficiaries" the learned Judge has observed as follows: "The question of legitim arose first in respect of sons as regards the properties of their father. As it was found that they had a close interest in those properties and that they had the obligation to continue the family, they have been consistently considered as forced heirs. The illegitimate son is also held to be a forced heir. The daughter in the absence of a son is considered to be the heir of her father."
As regards the "Property subject to Legitim", the learned Judge observed as follows:
"The French jurists did not make any distinction between ancestral properties and self-acquired properties, except Laude who stated that the father could not dispose of the immovables left by the ancestors at his pleasure and that the children had the right to attack the excessive liberalities by invoking their right of legitim, that in respect of self acquired properties the father had the right of disposal subject to the right of children to attack it as in the Roman law ( querela inofficiosi testamenti) in case they were deprived by the father without valid reason. Even this author only made a difference in respect of the remedy but the right of disposal was limited in both classes of properties."
22. The position thus appears to be clear that during the life time of the father, the son cannot ask for partition. The only remedy he can have appears to be to seek an interdiction or the appointment of a judicial counsel, that is to say, the son has the right to resort to the means of protection, defined by Chapters I and II of XI of Code Civil. We will revert to this interdiction a little later.
23. As regards the "Quantum of Legitim", the learned Judge observed as follows:
"To sum up, the French jurists and judges came to the conclusion that the quantum was left by the Hindu law to be determined by the Court. They were first in favour of allotting the share of the father as his disposable quota and when the consultative commission proposed the fixed ratio of 1/8th they adopted that solution. Again the ratio 1/8th as the disposable quota may be found to be too small in some cases. That is why the decision dated 4 February 1936, which for the first time applied this quantum reserved for the Court the right to vary it in case the father had given his reasons to favour in a particular manner any of his descendants. But, it is rare to find such justifications in the deeds embodying acts of liberality."
24. The next question is regarding the "Mechanism for enforcement". The learned Judge has elucidated the mechanism in the following manner:
"As regards the legal mechanism for the enforcement of the right of legitim the French Courts have been applying without hesitation from the beginning the rules embodied in the Code Civil in their entirety. Though the matter is dealt with in a few articles of the Code Civil an elaborate case law has been built up in the course of time around those articles and the mechanism for the enfor cement of the legitim is rather complicated. .... If a forced heir comes to the conclusion that what is left of the estate after the donations and the bequests is not sufficient to meet his legitim he has a right of action for having the liberalities effected by the propositus reduced to his disposable quota in order to recover what is necessary to complete the legitim. For that purpose he has to prove that the legitim has been invaded and show the extent of such invasion. For determining those points it is first necessary to assess the patrimony of the propositus on the date of his death as if he has not made any gifts. This entails the following operations: (i) determination of properties actually vesting on the propositus on the date of his death; (ii) determination of properties donated by the propositus; (iii) valuation and addition of the properties determined as above; (iv) deduction of the liabilities of the propositus.
While the three operations (i), (iii) and (iv) do not offer any particular difficulty the operation (ii) is fraught with some complications. Apart from donations recorded in the documents there may be donations from hand to hand, disguised donations or indirect donations like renunciation of a right, of a bequest or of a succession. For the purpose of determination of the legitim any act which has the effect of depriving the propositus from a thing or a right with the intention of gratifying another with the same is to be considered as a donation. The burden cast on the forced heir is not of easy performance. However, the presumption embodied in Article 918 of the Code Civil comes to his rescue to some extent. According to that article, all sale of properties to a person entitled to succeed in the direct line are to be considered as donations and, therefore, debitable to the disposable quota when the consideration for the sale is in the form of an annual payment by the purchaser during his life time or an annual payment during the life time of the donee or when the vendor has reserved himself the right of usufruct. In general, unless an alienation is proved to be a donation in one form or another, it remains intact and the concerned item shall not be brought in the hotchpot for the purpose of calculation of the legitim. But when it is a donation, it is susceptible of being reduced to satisfy the legitim, by exception to the general rule of irrevocability of donations. As regards the valuation of donated properties the Code Civil provided that they should be valued according to the state at the time of donation and their value on the date of the death of the propositus. This was modified by the Act of 7 February 1938 which provides that the properties shall be valued as per the state and value at the time of donation. However, this modification has not been made applicable to Pondicherry. Any improvement or damage caused by the donee will not be taken into account. The property is deemed not to have left the patrimony of the propositus. However, if the donation is in respect of a future thing the date for the purpose of valuation is not the date of donation but that of death.
When the four operations referred to above are completed the exact composition of the estate of the propositus is known. The amount of the disposable quota and the legitim due to each heir can easily be worked out and if it is found that the legitim of the plaintiff has been invaded, the liberalities have to be reduced to the extent necessary. Mode of reduction
Before taking up the process of reduction it would be necessary to find out whether the forced heir has not been himself the beneficiary of an act of liberality by the propositus. If so, two cases may arise, the first case is when the propositus has effected the liberality to him in addition to his share. In such a case the liberality made shall be charged to the disposable quota, if there is no other person having preferential right and the balance, if any, will be charged to the legitim. If the legitim is not so filled up with the liberalities made to himself there will be ground for reduction of other acts of liberalities in the absence of properties left undisposed. If the liberality received by him exceeds both the disposable quota and his legitim that liberality if liable to reduction at the instance of other forced heirs. In the second case, viz. when the liberality has been made to a forced heir not in addition to his share but only as an advance on his share, the liberality shall be charged first against his legitim. If the legitim is not filled up by that liberality he will be entitled to make good the deficiency in taking the properties left undisposed and in case of insufficiency of the latter by way of reduction of the liberalities made to others. If the liberality is more than his legitim he will be entitled to keep the excess only if it does not exceed the disposable quota and if there is no person with preferential right. Otherwise, such excess shall be subject to reduction at the instance of other forced heirs. When after completing the operations as described above in respect of all the forced heirs who have made a claim for reduction if it is found that there is a ground for reduction of liberalities, the reduction shall first operate on the properties bequeathed and if they are not sufficient then on the properties donated. In other words, if the disposable quota has been fully exhausted by the donations all the Wills will get cancelled by way of reduction. If the disposable quota is not fully exhausted by the donations and if the Wills exceed the balance of the disposable quota they are to be reduced to the extent of that excess proportionately to their values irrespective of their date and their nature. However, if the propositus has manifested expressly the intention that a particular bequest be given effect to in preference to the others that bequest shall be reduced only if all the others are not sufficient to meet the claim of the forced heirs. If the donations exceed the disposable quota they are subject to reduction. Such reduction will operate in starting by the last one in date and affect the others one by one in the reverse chronological order till it is necessary to meet the claim of all the forced heirs. This mode of operation cannot be changed even by the donor indicating any preference as in the case of bequests except when several donations bear the same date. If there is no indication of such preference donations bearing the same date will be reduced proportionately to their value. When the date of a donation cannot be proved it is assimilated to a bequest and subject to reduction proportionately along with other bequests.
Effect of reduction
When a liberality is found to be in excess of the disposable quota it does not become null and void. The action instituted by the forced heir has only the effect of cancelling the liberality to the extent necessary to satisfy the due of that heir. In case of a bequest the heir would get out of the bequest what is needed to make good the legitim, and the bequest would be executed for the balance, if any. Regarding the donation the right of action available to the forced heir does not give him a share in each of the movables and immovables donated necessitating a partition. The donations will only get cancelled in the order indicated above and to the extent necessary to meet the legitim irrespective of the nature of properties (movables or immovables) donated. Even disguised donations are not null and void. They are only subject to reduction as the other donations.
The reduction of liberalities operates in principle even inrespect of indirect donations. The beneficiary of an undue liberality would not be free from his obligation by offering a monetary compensation. However, this is subject to some exceptions which are becoming more and more important. In spite of the reduction the donee keeps for himself the past mesne profits. If the suit for reduction is filed within the year of death he has to give back mesne profits only from the date of death. If the suit is filed later mesne profits are due from the date of the suit only.
The reduction has also the effect of destroying the rights that third parties might have acquired on the immovables donated. However, if the donee is no longer in possession of the immovables he shall pay the value thereof to the forced heir and only in case of impossibility of recovering that amount the third parties holding properties shall become liable. Procedure
Any forced heir who as per his calculation comes to the conclusion that his legitim has been invaded has a right to ask for reduction of excessive liberalities. Such a claim produces effect only in respect of the heirs who make it and not in respect of others who may have the same right but who have failed to claim it. In fact, all the heirs are not bound to enforce their rights. They may renounce it. It is also possible that in respect of an estate some of the heirs renounce, some others not. The right is a divisible one.
The right of action becomes available only after the death of the propositus. The limitation for claiming reduction is thirty years from that time, the period of thirty years being the normal time limit in French law for all actions. In respect of third parties who acquired rights from the donee of a legatee they can plead, by way of defence, acquisitive prescription by ten to twenty years embodied in article 2265 of the Code Civil if other conditions, namely, good faith and regular title of transfer are present. Their prescriptive possession starts from the date of the death of the donor or the date of the acquisition by third parties, whichever is later."
25. We have faithfully reproduced very substantially the illuminating article of Justice DAVID ANNOUSSAMY not only out of deference to the erudition and knowledge of the learned Judge but also for the purpose of providing a sort of ready reckoner when need arose or occasion warranted for applying the principles so succinctly and lucidly enunciated.
26. Thus, the father irrespective of the nature of the properties in his possession cannot gratuitously transfer the property in favour of others more than 1/8th of the totality of his estate. However, this 1/8th we have to work out only on his death. Till then it would appear that the forced heir cannot have any right, though according to Mr. Kannan, learned Counsel for the appellant, there could be an interdiction restraining the father from exceeding the limit of 1/8th for creating bogus transactions. The learned Counsel wants to draw an analogy from the right of a reversioner to maintain a suit for a declaration that the alienation by a Hindu widow or other limited owner will not be binding on him.
27. SETHURAMAN, J. in PANDURANGAN VS. SARANGAPANI & ANOTHER (95 L. W. 318) has observed that such a principle cannot be applied to the facts of the case dealt with by him in which the plaintiff therein sought a declaration that the sale deed executed by his father was null and void, in that his father was of unsound mind and that the sale deed in favour of the first defendant in the suit having been executed when he was a person of unsound mind, conveyed no title to the first defendant. According to the learned Judge, the analogy of a Hindu reversioner seeking a declaratory decree in respect of alienation by a Hindu widow is a dangerous horse to ride and it would be prudent to keep away from it and further the father in that case was not in the position of a Hindu widow or a female heir, who had only limited powers of disposition over the properties and that the father had an absolute interest in the properties and plenary powers of disposition.
28. Mr. Kannan, learned Counsel for the appellant, relied on the judgment of a Division Bench of this Court in BOGANATHAM ARUNACHALAM CHETTY AND ANOTHER VS. BOGANATHAM KRISHNAVENI AMMAL AND ANOTHER ( AIR 1941 Madras 724) in support of his stand that the Court has power to give appropriate relief to the plaintiff to secure property from being frittered away. That was a case where, on the death of a son, his mother inherited his property. There were two other maintenance holders being the grandmother and great grandmother of the deceased son. The reversioners filed the suit for restraining the mother of the deceased from committing waste of the property inherited by her from her son. The bulk of the property was moveable properties being fixed deposits in banks and according to the plaintiff, the conduct of the widow was such as to raise a reasonable apprehension that the corpus of the estate would be endangered if she was allowed to have a free hand with the management of the property inherited by her. She denied that she was guilty of any act of waste and that no case was made out for restraining her right to the possession of the property inherited. The trial Court, in regard to the allegation regarding waste, found that the plaintiffs were unable to adduce any specific acts of waste committed by the mother of the deceased. However, it was of the opinion that there were sufficient grounds for the plaintiffs to entertain a reasonable apprehension that the cash which formed the bulk of the estate, would disappear unless some safeguard was provided. The lower Court therefore passed the following decree:
"In the result, there will be a decree in favour of the plaintiffs directing that defendant 1 may be at liberty to renew the deposits now lying in the Vellore and Karur Banks and that if at any time she desired to withdraw the deposits or re-invest them in other securities, public or private, she shall be entitled to do so but only on her application to the Court and after notice to the plaintiffs of her intention to do so. The object of this notice would be to enable the reversioners to take such steps as they may be advised to take, with a view to prevent defendant 1 from dealing with the money in the manner proposed by her. In other words, such questions as may be raised in that behalf shall not be liable to be investigated or determined in the course of the execution of this decree but only in a separate suit. In view of the fact that the plaintiffs have made exaggerated allegations and their success is partial, I would direct that each party shall bear his or her own costs of the suit."
The plaintiffs filed appeal objecting to the decree on the ground that, on the findings arrived at, the lower Court should have granted an injunction in the terms of the plaint. The first defendant filed a Memorandum of cross objections urging that on the findings arrived at by the lower Court, no case was made out for restraining her from dealing with the property. The Bench observed as follows:
"It is no doubt true that the nature of the estate taken by a mother inheriting the property of her son in the same as that taken by a widow inheriting the property of her husband, that she is not a trustee for the reversioners and that whether the property is moveable or immovable, she is entitled to have possession thereof and enjoy the same in accordance with the powers which the Hindu law confers on her. But her powers of disposal over the corpus of the estate are limited. She can only deal with and dispose of the property for purposes which are sanctioned by Hindu law; but where she acts in excess of her powers, there can be no doubt that she can always be restrained. .... Where the properties are moveable or cash and her conduct is such as to raise a reasonable apprehension that if she is allowed to have uncontrolled possession of it, she would not administer it in accordance with the powers which the law confers upon her. It is open to the Court to give such appropriate relief to the reversioner as would secure the property from being spent away for purposes other than those sanctioned by Hindu law. .... That the Court's power of interference is not limited to cases where a widow has been actually guilty of any specific act of waste or mismanagement, but extends to cases where reasonable apprehension of waste is made out, is well established. .... Whether the relief which the reversioner can get is not limited only to cases of actual mismanagement,but conduct justifying danger to the reversion would be enough, such as the intended investment in an unsafe security."
The Bench set out the principles in such cases as follows: "In giving the appropriate relief the principle which has to be kept in view is that while the mother or widow should not be allowed to deal with the property in excess of her powers under Hindu law, she must at the same time be protected from unnecessary harassment at the hands of the reversioners." The Bench was of the opinion that the reversioners were such that they would not hesitate to harass the widow even without any justifiable cause.
29. The Bench ultimately passed the following order: "Defendant 1 will be at liberty to renew the deposits now lying in Vellore, Karur and Dindigul banks and if at any time she desires to withdraw the deposits or re-invest them in other securities, she shall be entitled to do so but only with the sanction of the Court, but no sanction is necessary for realising interest on the sums in deposit or invested in securities. If the application is for investment ins securities other than those authorised by the Trusts Act or if she desires to withdraw the moneys and the withdrawal in the opinion of the Court does not appear to be prima facie justifiable or if the purpose of withdrawal is justifiable but the amount proposed to be withdrawn appears to the Court to be prima facie more than necessary, the Court shall issue a notice to the plaintiffs. If the plaintiffs appear and object and the Court after considering their objections comes to the conclusion that the withdrawal is not for a justifiable purpose, it shall dismiss the application. But, if the Court comes to the conclusion that the purpose is justifiable, it shall allow such amount as it considers reasonable."
30. Under Hindu law remedies are provided against unauthorised acts of widows and other limited heirs. Sections 202 to 205 in Mulla Hindu Law 18th Edition run as follows:
"202. Reversioners and their rights: A reversionary heir, although having those cotingent interests which can be differentiated little, if at all, from a spes successionis is recognized by Courts of law as having a right to demand that the estate be kept free from danger during its enjoyment by the widow or other limited heir. He may therefore use to restrain a widow or other limited heir from committing waste or injuring the property. The reason why such a suit by a reversionary heir is allowed is that the suit is by him in a representative character and on behalf of all the reversioners, so that the corpus of the estate may pass unimpaired to those entitled to the reversion. For the same reason he may bring a suit for a declaration that an alienation effected by her is not binding on the reversion. 203. Suit for a declaration that plaintiff is next reversioner: The next reversioner for the time being to the estate of a deceased Hindu, expectant upon the widow's death, is not entitled to a declaration that he is the next reversioner, although in that capacity he has the right to sue on behalf of the reversioners for the protection of the estate as stated in Sections 204 and 205.
204. Injunction to restrain waste: Where a widow or other limited heir in possession of property inherited by her commits waste or does any act which is injurious to the reversion, the next reversioner may institute a suit for an injunction restraining her from doing so. But the Court will not grant an injunction and will not take the management of the property out of her hands,unless the act complained of constitutes "danger to the property" 205. Declaratory suit in case of unauthorised alienations: (1) Where a widow or other limited heir alienates property inherited by her in contravention of the provisions of Section 178, the next reversioner, though he has no interest higher than a chance of succession, may institute a suit in her life time for a declaration that the alienation is not binding on the reversion, and if the facts are proved, the Court may pass a decree declaring that the alienation is not valid beyond the life time of the limited heir.
(2) The reversioners, however, are not bound to institute a declaratory suit. They are not obliged to take any action in the life time of the limited heir. They may wait until the estate vests in them on her death, and then sue the alienee for possession of the property."
31. In RADHA RANI BHARGAVA VS. HANUMAN PRASAD BHARGAVA AND OTHERS (AIR 1966 SC 216), the Supreme Court has held that in the case of an alienation by a Hindu widow without legal necessity, the alienee could not acquire any right during the life time of the alienor. Such a declaratory suit is not affected by the Indian Succession Act, 1956. If a widow without the consent of the reversioners alienates the property, the reversioners are entitled to bring a declaratory suit against her. Instead of waiting until her death, the next reversioner as representing all the reversioners of the last full owner, could institute a suit against the alienee for a declaration that the alienation was without legal necessity and was void beyond her life time.
32. It has been held by the Supreme Court in SUNIL KUMAR AND ANOTHER VS. RAM PARKASH AND OTHERS (1988(2) SCC 77) fairly brought to our notice by Mr. Kannan, learned Counsel for the appellant, that, "In a joint Hindu Mitakshara family, a son acquires by birth an interest equal to that of the father in ancestral property. The father by reason of his paternal relation and his position as the head of the family is its Manager and he is entitled to alienate joint family property so as to bind the interests of both adult and minor coparceners in the property, provided that the alienation is made for legal necessity or for the benefit of the estate or for meeting an antecedent debt. The power of the Manager of a joint Hindu family to alienate a joint Hindu family property is analogous to that of a Manager for an infant heir.
However, in a suit for permanent injunction under Section 38 of the Specific Relief Act by a coparcener against the father or Manager of the joint Hindu family property, grant of an injunction is prohibited under Section 41(h) as the coparcener has got equally efficacious remedy to get the sale set aside and recover possession of the property. Moreover, the grant of such a relief will have the effect of preventing the father permanently from selling or transferring the suit property belonging to the joint Hindu Undivided Family even if there is a genuine legal necessity for such transfer. Further, where the karta entered into the agreement of sale stating that he was the owner of the suit property, the question whether the suit property is the self acquired property of the father or it is the ancestral property has to be decided before granting any relief. The suit being one for permanent injunction, this question cannot be gone into and decided." The Supreme Court further stated as follows:
"Though in case of waste or ouster an injunction may be granted against the Manager of the joint Hindu family at the instance of the coparcener, but nonetheless a blanket injunction restraining permanently from alienating the property of the joint Hindu family even in the case of legal necessity, cannot be granted. However, whether such a suit for permanent injunction may be brought against the Karta where there are acts of waste, is not required to be considered.
Though the law confers a right on the coparcener to challenge the alienation made by Karta, that right is not inclusive of the right to obstruct alienation nor the right to obstruct alienation could be considered as incidental to the right to challenge the alienation. These are two distinct rights. One is the right to claim a share in the joint family estate free from unnecessary and unwanted encumbrance. The other is a right to interfere with the act of management of the joint family affairs. The coparcener is not entitled to claim the latter right. Therefore, he cannot move the Court to grant relief by injunction restraining the Karta from alienating the coparcenary property.
Section 38 of the Specific Relief Act has to be read with Section 41 thereof. As the coparcener has adequate remedy to impeach the alienation made by the Karta, he cannot, in view of Section 41(h), move the Court for an injunction restraining the Karta from alienating the coparcenary property."
33. The Supreme Court referred to the judgment of the Punjab and Haryana High Court in JUJHAR SINGH VS. GIANI TALOK SINGH (AIR 1987 P & H 34) and approved the decision as having correctly laid down the law: "If it is held that such a suit would be competent the result would be that each time the manager or the karta wants to sell property, the coparcener would file a suit which may take number of years for its disposal. The legal necessity or the purpose of the proposed sale which may be of pressing and urgent nature, would in most cases be frustrated by the time the suit is disposed of. Legally speaking, unless the alienation in fact is completed there would be no cause of action for any coparcener to maintain a suit because the right is only to challenge the alienation made and there is no right recognised inlaw to maintain a suit to prevent the proposed sale. The principle that an injunction can be granted for prevent ing waste by a manager of karta obviously would not be applicable to such a suit because the proposed alienation for an alleged need of the benefit of the estate cannot be said to be an act of waste by any stretch of reasoning. We are, therefore, of the considered view that a coparcener has no right to maintain a suit for permanent injunction restraining the manager or the karta from alienating the coparcenary property and his right is only to challenge the same and to recover the property after it has come into being."
34. We do not subscribe to the view expressed by SETHURAMAN, J. in PANDURANGAN VS. SARANGAPANI (supra) that the analogy of a Hindu reversioner seeking a declaratory decree cannot be applied to the claim of legitim by a forced heir under Pondicherry Customary Hindu Law. Under the Fresh system the father does not have an unlimited power in the matter of gratuitous transfer. It is now well settled that he cannot donate more than 1/8th of his estate. His right is limited to that extent. Even in respect of purported deeds for consideration or frittering away of ancestral patrimony by the father, they can be shown to be sham or brought about due to mental weakness or by prodigality. But we are unable to reconcile the two principles, viz. the sons have the rights to resort to the means of protection, defined by Chapters I and II of Title XI of Code Civil seeking interdiction of their father or to provide him with a judicial Counsel. However, the other principle is that the hands of the sons are tied during the life time of the father and any challenge could be made only on his death in respect of the `legitim' to be ascertained as on the date of death. If so, how could there be an interdiction during his life time. Unless our understanding is blurred, the two principles are in conflict and at cross purposes. More light is needed. We do not want to say anything more. But, there is no harm in the plaintiff having a declaration that after the life time of his father, the first defendant, donations made by him over and above 1/8th of his total estate will not be binding on the forced heirs. There will be a declaration accordingly.
35. Consequently, the appeals and the transfer appeals will stand dismissed, except with regard to this declaration. (P.S.M.,J.) (K.S.,J.) 24-7-2002
1. The Additional Subordinate Judge,
Cuddalore (with records).
2. The Record Keeper,
P. SHANMUGAM, J. &
K. SAMPATH, J.
Common Judgment in
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