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PETITIONER: LAKKIREDDI CHINNA VENKATA REDDI

       Vs.

RESPONDENT: LAKKIREDDI LAKSHMAMA

DATE OF JUDGMENT: 04/03/1963

BENCH: SHAH, J.C. BENCH: SHAH, J.C. GAJENDRAGADKAR, P.B. HIDAYATULLAH, M.

CITATION:  1963 AIR 1601            1964 SCR  (2) 172  CITATOR INFO :  F          1976 SC1715  (13)  RF         1977 SC2230  (17)

ACT: Hindu   Law--Joint  family   property--Partition--Right   of minor--Severance  of joint  property--Suit for partition  by minor if can be continued after his death-Separate or  self- acquired  property,  when impressed with  the  character  of joint family property.

HEADNOTE: Butchi  Tirupati  was  a  member  of  a  Hindu  co-parcenary consisting  of himself, his five brothers and his son  Pulla Reddy.   After Butchi Tripati’s death in 1947, Pulla  Reddy, his son and Lakshmama, his widow, filed a suit for partition and  separate possession of their share in the  property  of the  joint  family and a fourth share  in  certain  property devised  under  a will executed by VenKata  Konda  Reddy  in July,  1910.   Palia Reddy was then a minor and  his  mother acted  as  his  next friend.  Pulla Reddy  died  during  the pendency of the suit and his mother was shown in the  record as  his  legal representative for the suit.   The  suit  was contested  on the ground that it was highly  prejudicial  to the interest of Pulla Reddy to have his share separated from the  joint  family estate.  It was also  denied  that  Pulla Reddy  and his mother had been driven away from  the  family house. The  trial  court hold, that partition of the  joint  family property  was for the benefit of the minor Pulla  Reddy  and the  High  Court affirmed that view.  Two  questions  raised before the Supreme Court.were whether the suit for partition of joint 173 family  property could, after the death of the minor,  Pulla Reddy,  be continued by his mother and whether the  property devised  under the will of Venkata Konda Reddy in favour  of defendants  1,  2, 5 and Butchi Trirupati  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, be  continued

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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 the 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 show 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 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 174 separate  claim  therein.  To establish  such  abandonment,a clear intention to waive separate right 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 legal obligation. Kakumanu Peda Subbayyas v. Kakumanu Akkamma, [1959] S. C. R. 1249, relied on.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 251 of 1961. Appeal  from the judgment and decree dated October 21,  1955 of the former Andhra High Court in A. S. No. 64 of 1951. A.   Ranganandham Chetty, A. Veda Valli and A.   V. Rangam, for the appellants. B. K. B. Naidu, for the respondent. 1963.  March 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  No. 64  of 1951 modifying the decree in Suit No. 111 of 1949  of the file of the Subordinate judge, Guddapah. The  following genealogy- explains the relationship  between the parties to the appeal :  175                       Lakkireddi Tirupati Reddy                                |               --------------------------------------------              |                 |                         |          Venkata Konda      Pedda Tirupelu  Chinna Tirupelu

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           Reddy              Reddy                   Reddy                                |                      |----------------------------|                      |         |                  |                   Bala Konda  Pedda Butchi  Chinna Butchi                    Reddy        Reddy           Reddy                      |                      | ---------------------------------------------------------- |           |           |          |          |          | Pedda     Chinna    Bala     Butchi Konda   Raju   Venkatta Venkata  Venkata   Venkata  =Lakshmama     Konda      Konda (D-1)     (d-2)    (D-3)    (2nd pltff)      (D-3)     (D-4) =Venkattarama                     |   (D-9)                           |      |                            | |-----------|----------|     |---------------------------| Venkatta  Ram       Ram    Pulla Reddy            pullamma Rami-   Chandra   Krishna   (1st pltff) reddy   Reddy     Reddy (D-6)   (D-7)     (D-8) 176 Butchi Tirupati was one of the six sons of Bala Konda. Pulla Reddi and Lakshmama-son and widow  respectively  of   Butchi Tirupati-instituted Suit No.  111  of 1949 in the  Court  of the  Subordinate judge, Cuddapah for partition and  separate possession  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 executed by  Venkata  Konda Reddy, on July 1, 1910.  Pulla Reddy was at the date of  the suit  a  minor and his mother Lakshmama acted  as  his  next friend.   Pulla Reddy died during the pendency of  the  suit and  Lakshmama  was  shown  in  the  record  as  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-5) 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 property 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 appealed to this  Court, with certificate under Art. 133 (1) (a)  granted by the High Court. Two questions survive in this appeal (1)  Whether  Suit  No. 111 of 1949 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  177 grant  a decree for partition of joint family property in  a suit  instituted 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  advancing  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

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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 consisting  of himself, his five brothers and  Pulla  Reddy. After the death of Butchi Tirupati, defendants 1, 2, 3 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 share 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 178 which  did  not  disclose the entire  estate  of  the  joint family.   The  first defendant  substantially  admitted  the claim  of  the plaintiffs to a share in  the  properties  in suit.  Defendants, 2, 3 and 4 denied that the two plaintiffs were  driven away from the joint family house as alleged  by 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  property of Venkata  Konda  Reddy  had devolved  by  survivorship on their father  Bala  Konda  and after  the death of Bala Konda, his sons (defendants 1 to  5 and Butchi Tirupati) took it by survivorship, that the  will executed  by  Venkata 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,  1948,  and that  certain  lands-items Nos. 6, 7 and 8 in  the  schedule annexed to the plaint-had been given to Chinnamma sister  of the  contesting defendants for her maintenance and were  not liable to be partitioned. The  Trial Court held that partition of the property 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 defendants 2, 3 and 4 clearly disclose that the  continuance of  the  joint  family status would be  prejudicial  to  the interest of the minor Pulla Reddy.  They denied that certain items of property which were found by the Court to be  joint family property were of that character : they sought to  set up  title  of  their  sister  Chinnamma  to  certain   other property,  and pleaded that the property devised  under  the will of Venkata Konda Reddy had ceased to be the separate  179 property  of  the  devisees.  The  evidence  on  the  record establishes that the contesting defendants made it difficult for  Pulla  Reddy and his mother Lakshmama 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

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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 coparceners, 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 right 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 decree for partition  and  separate possession  of  his  share in the  family  property  is  not founded  on  a cause of action personal to him.   The  right claimed  is  in property,, and devolves on  his  death  even during minority upon his legal representative.  The’  Court, it  is true, will direct. 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, in a suit instituted by a minor is not to create a new 180 right  which  the  minor  did not  possess,  but  merely  to recognize 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.  In Kakumanu Peda Subbayyas v.  Kakumanu Akkamma (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  pendency  of the suit had not, therefore, on  the  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 awardable to’ Lakshmama in the property  devised under the will of Venkata Konda Reddy.  Lakkireddi  Tirupati had  three sons, Venkata Konda Reddy, Pedda  Tirupelu  Reddy and  Chinna Tirupelu Reddy.  Venkata Konda Reddy executed  a will on July 1, 1910 devising in favour of the four sons  of his nephew Bala Konda, 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 Konda instituted on July 2, 1910 suit No. 466 of 1910 in the Court  of  the District Munsif, Proddatur  for  division  of properties which he claimed were jointly enjoyed by him  and his  two  uncles  Venkata Konda Reddy  and  Chinna  Tirupelu 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 Konda and the rest was

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(1)  [1959] S. C. R, 1249.  181 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  devices  under that will. Law  relating  to blending of separate property  with  joint 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  legal 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 Konda.  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  art  or  exercise  of  volition  Butchi  Tirupati surrendered 182 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.  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 of Venkata Konda Reddy. The. appeal therefore fails and is dismissed with costs. Appeal dismissed.