Lakkireddi Chinna Venkata Reddi v. Lakkireddi Lakshmana

Judgment

M<1.ngtas Tta FJlt.tt lls H'orkmm Hi44yoM/ah J. /963 M•rrn 4 I to interfere with the conculsion of the Trihunal. The result is that the appeal fails and is dis· missed with costs. A ppP.<Jl dismiMrd. LAKKIREDDI CHIN:'>:A VEl\KATA REDDI LAKKIREDDI LAKSHMAl\fA (P. B. GA.JENDRAGADKAR, M. HIDAYATULLAR and j. C. SHAH jj.) Hindu Law~loinr family prop<rly-i'artirion-lligld of niinor-,)l't'f',ranct of joint property-Su.it for ]Xlrlitinn by 111inor if can be con.Jini£ed a/kr hi8 dfath-Sej><r-TfJte or self·ar"luirc<l property, when impru.ed wilh rhe charact.r of joinl family prop<,.ty. Butchi Tirupati was a member of a Hindu co-parcenary consisting of himself, his five l>rothcrs and his son P11Ila Reddy.

After llutchi Tripati's death in 1947, Pulla Reddy, his sou and Lakshmaina, his wido,v, filed a st1it for partition and separate possession of their share in the properly of the joint family an<l a fourth share in certain property devised under a \VilJ executed by \'en<'1ta Konda Reddy in July, 1910. l'ulla Reddy was then a minor and his in.other acted as his nex" friend. Pulla Reddy died during the pendency of the suit and his mother \Va~ shown ln the record as his legal representative for the suit. The suit v:as contested on the gro11nd that it was highly µrejudicial to the interest of P11lla Redciy to hAV(' his share separatt!d from the joint f;unily '"-,tale. It WA-'i also denied that Pulla Reddy aoJd ht• mother had been driven away from the family house. The trial court holrl th;ll part1t1on of the joint family property was for the benefit of the minor P11lla Reddy and tho High Court affirmed that view.

Two questions raised before the Supreme Court were whether the suit for partition of jollii 2 S.C.R . SUPREM~ COURT REPORTS i73 family property could, after the death of the minor, Pulla Reddy, be continued by his mot!..er and whe_ther the property devised uuder the will of Venkata Konda Reddy in favour of <lcfe11dants l, 2, 5 and Butchi Tiruµati had, because of blending with their joint family estate, been impressed with the character of joint family property. Held, that the suit for partition of the joint family property could, after the death of the minor, he continued by his mother. Action by the minor for a decree for partition and separate possession of his share in the family property was not founded on a cause of action personal to him. The right claimed was in property and devolved on his death even during minority upon his legal representative.

The effect of !he decision of the Court granting a decree for partition in a suit instituted by a minor was not to create a new right which the minor did not possess but merely to recognise the right which accrued to him when the action was commenced. It is the institution of the suit, subject to the decision of the Court and not the decree of the Court that brings about the severance. A suit filed on behalf of a Hindu minor for partition of a joint family property does not, on the death of the minor during the pendency of the suit abate and may be continued by his legal representative and decree obtained therein if the Court holds that the institution of the suit was for the benefit of the minor. Held, also, that there was no evidence on the record to •how that by any conscious act or exercise of volition, Butchi Tirupati surrendered his interest in the property devised in his favour under the will of Venkata Konda Reddy so as to blend it with the joint family property.

Lakshmama, mother of the minor, was entitled to a fourth share in the property. Property separate or self-acquired of a member of a joint Hindu family may be impre,.ed wiih the character of joint family property if it is voluatarily thrown by the owner into the common stock with the intention of abandoning his /963 Lakkire.ddi ChinAO JI mhttJ Retllli lakJWuldi Laks/amarnD lokkfrttldi ChirUla Vtn..Wla Rtddi laUir1dtli l..slcshmoma SnaA /, ·174 sUPREMtcouR.tR.ti>oR.ts[i!l64J \!oL separate clain1 therein. To establish such abaudonmenf, a clear intention to waive separate right must be established.

From the 1n<:Tc fact that other members of the farnily were allowed to use the property jointly with himself or that the income of the separate property was utilised out of generosity to support persons whom the holder was not bound to support or from the failure to maintain separate accounts, abandonment cannot be inferred for an act of generosity or kindness \Viii not ordinarily be regarded as an admission of a legal obligation. Kak~onanu }lcda ,')ubbayya., v. Kakumanu .4.kkanHna, [1959J S. C.R. 1249, relied on. CIVIL Al'PI>LLATE JunISllJCTlOS : Civil Appeal No. 251 of 1961. Appeal from the judgment and decree dated October 21, 1955 of the former Andltra High Court in A. S. No. 64 of 1951. A. Rr,ng,maiulham Chetly, .tl. Vedr1 Vr1lli and A. V. Ru1111ain, for the appellants. B. ](, B. Nriidu, for the respondent. 1063. :\<larch 4.

The Judgment of the Court was delivered by SHAH J.-This appeal with certificate granted by the High Court of Andhra Pradesh is against the decree in appeal ::-lo. (i4 of 1051 modifying the decree in Snit No. 111 of 194!.l of the file of the Subordinate Judge, Cuddapah. The following genealogy explains the relationship between the parties to the appeal : Lakkireddi Tirupati Reddy I I I Venkata Konda Pedda Tirupelu Chinna Tirupelu I Pedda Venkata (D-1) Reddy Reddy Reddy _____ 1 _____ 1 Bala konda Pedda 1Butchi Chinna Butchi I Reddy Reddy Reddy I Chinn a I Bala I Butchi Konda =Venkatamma · Venkata (D-2) Venkata (D-3) =Lakshmama (2nd pltff.) I Raju Konda (D-3) I Venkata Ramireddy (D-6) (D-9) I I Ram Chandra Reddy (D-7) Ram Krishna Reddy (D-8) I Pulla Reddy (1st pltff.) I Pullamma c:/l i c;/l. t,i:t : t,i:t· .. I Cb 0 Venkata c::: Konda (D-4) :::e t,i:S, '"<:I t-;. c:/l 01 Lalcli;irtt/4i CJumra V111kota Rrtl.li L4l1ciru/4i l.a!.:sltm .... SW. J. i 76 SUPREME cot.JR T REPORts ll964] v6t.

Butchi Tirupati was one of the six sons of Bala Konda. Pulla Reddi and Lakshmama-son and widow respectively of llutchi Tirupati-instituted Suit No. 111 of 1!149 in the Court of the Subordinate Judge, Cuddapah for partition and separate posses· sion of their share in the property of the joint family to which they belonged and a fourth share in certain property devised under the will ex~cuted by Venkata Konda Reddy, on July 1, l!Jl 0. Pulla Reddy was at the date of the suit a minor and his mother Lakshmama acted as his next friend. l'ulla Reddy died during the pendency ol the suit and Lakshrnama was shown in the record ;is his legal representative for the suit.

The Trial Court held that the property devised under the will of Venkata Konda Reddy in favour of Pedda Venkata (D-1), Chinna Venkata (D-2), Bala Venkata (D-!3) and Butchi Tirupati had on account of blending with the joint family estate been impressed with the character of joint family property, and on that account Lakshmama was entitled to a fifth share in all the property in suit. The High Court in appeal awarded to Lakshmama a fourth share in the pro· pcrty devised under the will of Venkata Konda Reddy and confirmed the decree of the Trial Court awarding a fifth share in the property of the joint family. Defendant·2 Chinna Venkata, Defendant-3 Raju Konda and Defendant-4 Venkata Konda have ap· pealed to this Court, with certificate under Art. 133 (1) (a) granted by the High Court. Two questions survive in this appeal : (1) \\Thether Suit No. Ill of l!J4!) for partition of joint family property could, after the death of the minor Pulla Reddy, be continued by his mother Lakshmama.

That question necessitates an investigation whether the suit was instituted for the benefit of the minor Pulla Reddy, because it is settled law that the Court will not 2 s.c.k. grant a decree for partition of joint family property in a suit institllted by a Hindu minor through his next friend, unless the Court is satisfied that the partition is likely to be for the benefit of the minor by advan- . cing or protecting his interest ; and (2) Whether the property devised under the will of Venkata Konda Reddy in favour of defendants 1, 2, 5 and Butchi Tirupati had, because of blending with their joint family estate, been impressed with the character of joint family property. We will set out such facts as have a bearing on these questions. It is common ground that at the date of his death in 1947 Butchi Tirupati was a member of a Hindu coparcenary consi>ting of himself, his five brothers and Pulla Reddy.

After the death of Butchi Tirupati, defendants 1, 2, :J and 4 purported to partition the estate in their possession, and executed a deed of partition (Ext. A-3) on August 12, 1948, in which the minor Pulla Reddy was represented by the fourth defendant. By this deed certain properties were allotted to the share of the first defendant Pedda Venkata, but the deed was silent about the dissolution of the joint family qua other members of the family, and about allotment of shares to those members.

Thereafter Lakshmama instituted the suit out of which this appeal has arisen on behalf of herself and as next friend of her minor son, for a decree for partition of their share in the estate of the joint family and the property devised under the will of Venkata Konda Reddy, alleging that defendants 2, 3 and 4 declined to give to the minor Pulla Reddy his ~hare in the estate, and drove her and the minor away from the family house, and that with a view to prejudice the right of the minor in the property they had brought into existence a deed of partition Ldkirufdi Chinna V1nkata Redd,i lakkireddi Lakshmama Shoh J. /9/i3 UAkirtdii Chiivi~ V 111.t•t• Rtiii L.UiitOMi fAkJ/vnama /kah J. which did not disclose the entire estate of the joint family. The first defendant substantially admitted the claim of the plaint i!Ts to a share in the properties in suit.

Defendants, :.!, :1 and 4 denied that the two plaintiffs were driven away from the joint family house as alleged hy Lakshmama, and submitted that it would be "highly prejudicial" to the interests of Pulla Reddy to have his share separated from the joint family estate. They contended that the proper· Ly of Venkata Kunda Reddy had devolved by survivorship on their father Bala Kunda and after the death of Bala Konda, his sons (defendants I to 5 and Rutchi Tirupati) took it by survivorship, that the will executed by \'enkata Konda Reddy was not valid because it attempted to devise property which belonged to the joint family, that in any event the property devised under that will had been blended with the joint family estate and had been treated as of the joint family and on that footing were included in the partition deed dated August 12, l!H8, and that certain lands-itrrns l\os.

Ii, 7 and ~ in the schedule annexed to the plain.thad bcc1; given to Chinnamma sister of the contesting defrn· dants for her maintenance and were not li3ble to be partitioned. The Trial Court held that partition of the pro· perty of the joint family was for the benefit of the minor Pulla Reddy and the High Court affirmed that view. The contentions raised in the written statement filed by dr.fcndants 2, 3 and 4 dearly disclosr that th~ co111inuancc of the joint family st~tus would be prejudicial to the interest of the minor Pu Ila R~ddy. They denied that certain items of property which were found by the Court to be joint family pi operty were of that character: they sought to set up titl~ of their sister Chinnamma to certdin other proprrty. and pleaded that the property devised under the will of Venka1a Konda Reddy had ceased to be the separate 2 S.C.R. property of the devisees.

The evidence on the record establishes that the contesting defehdants made it difficult for Pulla Reddy and his mother Lakshmarna to live in the joint family house. The deed dated August 12, 1948 which included some and not all the joint family property for the purpose of partition, appeared also to be an attempt to create evidence that the property set out in the deed was the only estate of the joint family. It is true that normally the family estate is better managed in union than in division, nevertheless the interest of the minor is the prime consideration in adjudging whether the estate should be divided at the instance of a minor suitor. If the conduct of the adult coparc.eners, or the claim made by them is prejudicial to the interest of the minor the Court will readily presume that it is for his benefit to divide the estate. The conclusion recorded by the Trial Court and the High Court that partition would be for the benefit of,the minor was amply supported by evidence.

In the circumstances it is unnecessary to express any opinion on the question whether Lakshmama was entitled in her own ri~ht to file a suit for a share in the property of the joint family, and for the share of her husband Butchi Tirupati in the estate devised under the will of Venkata Konda Reddy and prosecute it after the death of her son Pulla Reddy. Action by a minor for a decre,e for partition and separate possession of his share in the family property is not founded on a caus.e of action personal to him. The right claimed is iu propi:rty, and devolves on his death even dnring minority upon his legal representative.

The Court, it is true, will dirrct partition only if partition is in the interest of the minor but that limitation arises not because of any peculiarity in the estate of the minor but is imposed for the protection of his interest· The effect of the decision of the Court granting a decree for partition jl) a s4it iqstiruted by a minor it µot t9 cre!!te a I)C)W Lakkfreddi Cfiinna Venkat1 Rttlii Vi Lakki1etldi Lakshmama Shah J. JYt3 laJ../cirult/i (;hirt11<1 V11rklltd Rtddi Li1kkirtJJi WshFMIU Shoh J. tso suPREME cotiRT ilEt>oRts [i964J vol. right which the minor did not possess, but merely to recognise the right which accrued to him when the action was commenced. It is the i11stitution of the suit, subject to the decision of the CoLirl, and not the decree of the Court that brings about the severance. In Krikunumu l'eda Suhbayyas v. Kakunwnu Akkmmna (1), it was held by this Court that a suit filed on behalf of a Hindu minor for partition of joint family properties does not on the death of the minor during the pendency of the suit abate, and may be continued by' his legal representative and decree obtained therein if the Court holds that the institution of the suit was for the benefit of the minor.

Death of the minor Pulla Reddy during the pcndency of the suit had not, therefore, on thr view ultimately taken by the Court the effect of terminating the suit which was instituted for partition of the property in suit. We may now consider the second question, about the quantum of interest awardablc to Lakshmama in the property devised under the will of Venkata Kanda Reddy. Lakkireddi Tirupati had three sons, Venkata Kunda Reddy, Pedda Tirupelu Reddy and Chiona Tirupelu Reddy. Vcnkata Kanda Reddy executed a will on July l, HHO devising in favour of the four sons of his nephew Hala Kanda, named, Pedda Venkata, Chinna Venkata, Bala Venkata and Butchi Tirupati (who were born before the date of the will), all his property which he claimed to have received on partition between him and his brothers. Bala Kanda instituted on July 2, 1910 suit No. 466of1910 in the Court of the District Munsif, Proddatur for division of properties which he claimed were jointly enjoyed by him and his two uncles Vcnkata Konda Reddy and Chinna Tirupclu Reddy.

Under a decree dated June 26, 1911 passed in the suit with the consent of parties the property in suit was divided into five shares one of which was allotted to Bala Kanda . and the rest was (I) (19~9] s. c. ll, 1249. 2 S.C.R. taken in two equal moieties by his two uncles. Venkata Konda Reddy died in 1915 and the property which fell to his share by the compromise decree devolved by virtue of the disposition under his will on the four sons of Bala 'Konda. It is contended by defendants 2, 3 and 4 that the property devised under the will of Venkata Konda Reddy became by subsequent blending, property of the joint family, and the plaintiffs were not entitled to claim a share larger than the share they had in the joint family property. It may be mentioned that defendants 3 and 4 were born after the date of Venkata Konda's will, and they were not devisees under that will. Law relating to blending, of separate property withjoint family property is well-settled.

Property separate or self-acquired of a member of a joint Hindu family may be impressed with the character of joint family property if it is voluntarily thrown by the owner into the common stock with the intention of abandoning his separate claim therein : but to establish such abandonment a clear intention to waive separate rights must be established. From the mere fact that other members of the family were allowed to use the property jointly with himself, or that the income of the separate property was utilised out of generosity to support persons whom the holder was not bound to support, or from the failure to maintain separate accounts, abandonment cannot be inferred, for an act of generosity or kindness will not ordinarily be regarded. as an admission of a lega I obligation. It is true that Butchi Tirupati who was one of the devisees under the will of Venkata Konda Reddy was a member of the joint family consisting of himself, his five brothers and his father Bala Kanda.

It is also true that there is no clear evidence as. to how the property was dealt with, nor, as to the appropriation .of the income thereof. 'But there is no evidence on the record to show that by any conscious 11c;:t or e~ercise of volition Butchi Tirupati surrendfrecl La~kireddi Chinna Y-et1kata Redd f, '(.,alr.kireddi' Lakshmama Shall J. Lallr.itttltli Chi11no 1't11),:tzla l,'trlai IM.kiruldl L11k.thmmno Shah J, Ma"il 4 is2 SUPREME cotJRt RtPoit'fs [1964] voL. his interest in the property devised iu his favour under the will or V cnkata Konda Reddy so as to blend it with the joint family property. In the absence of any such evidence, the High Court was, in our judgment, right in holding that Lakshmama was entitled to a fourth share in the property devised under the will or Vcnkata Konda Reddy. The appeal therefore fails and is dismissed with costs. Appwl tli.~111·iBscd. :'l:AfIONAL INSURANCE CO. LTD. LIFE INSURANCE CORPORATION OF INDIA (P. B. GA.JENDRAGADKAR, M. HwAYA'ITLLAll and J. c.

SHAii JJ.) Liff'. ln,lfurance-Co1i..~tructiutt uf 1':flalutc--C'u11ipu~itr. inJurer-"Cvnlrolltd businP.1A"-Mcaniny and SCUjic -;f-If include.~ capilnl reckmptian ln~1°ntlfS 1Lntl annility cR.,ia£n husintss- Life In.•urance Corporation Act, 1956 (31 of J'J.)G) ss. ~. 7. ~fhc appellant company was iil.Ginitt1:J 1;: co1npositc insurer because it r.arricd on general in5· .. r~nc<e. bu1iness in addition to the busineS> which fell within the definitio~ or controlled business. The company also carried 011 both capital redemption businCS! and annuity ccr1ain busin~ss which it compendiously called capital obligation businc.•s. By the operation of s. 7 (I) of the Life fnsnrance Corporation Act, 1956, all the a~cts and liabilities appertainirr~ to the "-.~ontrollcd business" of all insnrers were transferrcrl. to 1 and ''~tcd in the Life lnsura1lcc Corporation front the 'appointed day'.

In pursuance of this provision the I.ife Insurance Corporation took over the life insurance Uusincss 1 ! the appellant company. Dispute arose between the parties as to \VJ.at pOlrt or 1hc business of the appellant cornpany vests in the Corpc.ration and what are the assets of the business. The appellant comp•ny r.ontended