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Venkatarayudu v. Sivaramakrishnayya

Madras High Court

May 4, 1934

Judgment

Subsequent
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Factual and Procedural Background

This second appeal by defendants 2 and 4 to 9 is against the decree of the District Judge of Guntur in Appeal Nos. 50 and 77 of 1925 which directed partition of the suit properties into seven shares and delivery of one-seventh share to the plaintiffs together with mesne profits. The suit properties belonged to a joint Hindu family consisting of defendants 2 to 9 (defendant 2 the father; defendants 3 to 8 his sons; defendant 9 the son of defendant 3).

In I.P. No. 14 of 1915 on the District Court file, defendant 3 was adjudicated insolvent and defendant 10 (the Official Receiver) was appointed. The Official Receiver sold by public auction the one-seventh share of defendants 3 and 9 in the suit properties. Plaintiff 1 purchased a one-seventh share in certain specified lots under sale deed Ex. A dated 11th February 1919. The one-seventh share in other lots was sold to defendant 1 (the son-in-law of defendant 2) under sale deed Ex. B dated 12th February 1919. Plaintiff 2 is the son of plaintiff 1, and plaintiff 1 conveyed a portion of his properties to plaintiff 3 by registered sale deed dated 2nd October 1920.

The suit out of which this appeal arises (O.S. No. 55 of 1922) was instituted by the plaintiffs for partition of the suit properties into seven equal shares and delivery of the one-seventh share purchased by them together with mesne profits. The Subordinate Judge of Guntur passed a preliminary decree for partition with certain findings (including awarding mesne profits from the date of the plaint and making provision for marriage expenses of two brothers). Both plaintiffs and defendants appealed to the District Court. The District Judge modified the Subordinate Judge's decree on two main points: he held that plaintiffs were entitled to mesne profits from the date of purchase (on the view that the filing of the insolvency petition severed joint family status) and he held that no provision should be made for the marriage expenses of defendants 7 and 8 (relying on 1922 P.C. 201). Against the District Judge's modified decree the present second appeal was preferred by defendants 2 and 4–9.

Legal Issues Presented

Whether the plaintiffs are entitled to mesne profits against defendants 2 and 4 to 8, and if so, from what date (plaintiffs contended from date of purchase, defendants contended from date of preliminary decree, and a different view was taken below that limited entitlement to date of plaint)?
Whether defendants 7 and 8 are entitled to have provision made out of the joint estate for the expenses of their marriage?

Arguments of the Parties

Appellants' (Defendants 2 and 4–9) Arguments

Argued (before this Court) that the District Judge's decision is wrong on both points.
Contended the plaintiffs should be entitled to mesne profits only from the date of the preliminary decree (i.e., not from date of purchase).
Contended that the properties should be charged with the payment of the marriage expenses of defendants 7 and 8 (i.e., a provision should be made out of the joint estate before equal partition).
Argued (with respect to marriage expenses) that the Privy Council decision (1922 P.C. 201) does not supersede the earlier Madras decisions in 1914 Mad. 226 and 1915 Mad. 1027 and that the Privy Council decision is inapplicable because that case involved a suit for partition instituted by some co-parceners against others, whereas the present suit was not so instituted by a coparcener.

Plaintiffs-Respondents' Arguments

Contended plaintiffs were entitled to mesne profits from the date of purchase of the share (11th February 1919).
Relied on the Privy Council decision in 1922 P.C. 201 to support the contention that no provision should be made for the marriage expenses of defendants 7 and 8 (i.e., that the obligation to provide for future marriages ceases on severance).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
1915 Mad. 4531	Held that "a purchaser of an undivided share of a member of a joint Hindu family does not thereby become a tenant-in-common with the other members and hence he is not entitled to any mesne profits in respect of his share for the period between the date of his purchase and the date of his suit for partition."	The court observed that this decision was relied on by the Subordinate Judge but concluded it did not directly arise for consideration in the present case because the present case concerned an alienation by the Official Receiver (representative of the insolvent), and hence the principle in that decision was not applicable here.
1915 Mad. 10272	Described in the opinion as holding (following 1914 Mad 2263 and dissenting from 1917 Mad. 4774) that in partition decrees provision should be made for the marriage expenses of the unmarried members of the family.	This decision was one of the earlier Madras decisions supporting the view that provision should be made for marriage expenses; the Court considered it among prior authorities but later held it was superseded by the Privy Council decision (1922 P.C. 201) on the point under consideration.
1914 Mad 2263 (also referenced as 1914 Mad. 226)	Earlier Madras decision supporting provision in partition decrees for marriage expenses of unmarried members.	The Court noted this decision was among those the Privy Council had been made aware of and concluded that the Privy Council's subsequent pronouncement enunciated the correct principle and should be regarded as overruling the earlier Madras decisions on this point.
1917 Mad. 4774 (also cited as 1917 Mad. 477 / 1917 Mad. 477)	Held that an unmarried co-parcener is not entitled to an anticipatory provision for future marriage at partition, but allowed a claim for expenses of marriage that took place before the first court's decree on the ground that "joint family status was not dis-severed until the decree for partition and that the joint family continued until then."	The Court recorded that this decision took a contrary view to 1914 Mad. 226 and 1915 Mad. 1027; but the present Court treated the subsequent Privy Council decision as authoritative on the point and applied that principle instead.
1922 P.C. 201	Privy Council judgment holding (following 1916 P.C. 1048) that institution of a suit for partition effects severance of joint status and that a member who is unmarried at the time of severance is not entitled to have a provision made in the partition for his marriage expenses, even if he marries before the decree.	The Court accepted and applied this decision, holding that it established the correct principle and superseded the earlier Madras decisions; accordingly, the Court held no provision should be made in the decree for the marriages of defendants 7 and 8.
1916 P.C. 1048	Referenced by the Privy Council in 1922 P.C. 201 as a precedent followed on the point of severance on institution of partition suit.	The Court noted that 1916 P.C. 1048 was followed by the Privy Council in 1922 P.C. 201 and thereby influenced the Court's conclusion about the effect of severance on marriage expense obligations.
1923 Mad. 556	Held that the Official Assignee is entitled on the insolvency of any coparcener to joint possession with the other co-parceners.	The Court relied on this authority (and similar subsequent Madras authority) to observe that the Official Receiver (and alienee from him) has joint possession and therefore cannot claim mesne profits unless excluded from enjoyment by the co-parceners.
1928 Mad. 5317 (and referenced also as 1928 Mad. 531)	In the later of the two cases mentioned (text includes both forms), the privilege of joint possession with respect to an insolvent's share is accorded to an alienee from the Official Receiver as well.	The Court treated these decisions as establishing that the alienee from the Official Receiver stands in the position of a co-parcener with joint possession; that principle affected the court's analysis of entitlement to mesne profits.
Mulla, Hindu Law (p. 311)	Textbook authority cited for the proposition that an Official Assignee is entitled to joint possession along with co-parceners.	Used to support the legal proposition that an Official Assignee/alienee has joint possession and therefore mesne profits require proof of exclusion.

Court's Reasoning and Analysis

The Court addressed the two principal issues in sequence.

On mesne profits (Issue 3):

The Court rejected the District Judge's reasoning that the mere filing of an insolvency petition effects a severance of the joint family status. The Court observed there was no authority cited in support of that proposition and that principle and authority do not sustain it.
The Court explained the immediate object of an insolvency petition is to obtain exemption from arrest and that a stranger (e.g., a purchaser or the Official Receiver) cannot, by conduct such as filing the petition, unilaterally effect a severance of the joint family status.
Although adjudication vests the insolvent's share in the Official Receiver and gives the Official Receiver disposing power with respect to that share, these consequences do not amount to severance of the joint family status.
The Court relied on established Madras decisions (and Mulla) that the Official Assignee (and an alienee from the Official Receiver) is entitled to joint possession with the other co-parceners. From this it follows that a co-parcener entitled to joint possession cannot claim mesne profits unless he shows exclusion from enjoyment by the other co-parceners.
Because the specific question of exclusion was not made a distinct issue in the pleadings and no direct evidence was led on it, the Court examined the plaint which did include a statement that "after the purchase of the properties, in spite of repeated demands the defendants have not chosen to effect a division of the properties or to put the plaintiffs in possession, etc." The Court concluded it is reasonable to treat possession as having been demanded and refused from the date of the plaint.
Accordingly, while rejecting the District Judge's ground for awarding mesne profits from the date of purchase (i.e., severance by filing insolvency), the Court agreed with the Subordinate Judge's result that the plaintiffs are entitled to mesne profits — but on the ground that possession was demanded and refused from the date of the plaint. The Court therefore held plaintiffs entitled to mesne profits from the date of the plaint.
The Court further observed that the particular principle established in 1915 Mad. 4531 (that a purchaser of an undivided share does not become tenant-in-common and is not entitled to mesne profits from date of purchase) did not directly arise for consideration here because the present case involved an alienation by the Official Receiver.

On provision for marriage expenses (Issue 5):

The Court reviewed the conflicting Madras authorities which earlier supported making such provision (1914 Mad. 226; 1915 Mad. 1027) and contrasted them with 1917 Mad. 477 and the Privy Council decision in 1922 P.C. 201.
The Privy Council in 1922 P.C. 201 (following 1916 P.C. 1048) held that institution of a suit for partition effects severance and that an unmarried member at the time of severance is not entitled to a provision in partition for future marriage expenses even if he marries before the decree. The Court regarded this pronouncement as articulating the correct principle.
The Court rejected the appellants' argument that the Privy Council decision was inapplicable to the present case; it held the principle stated by the Privy Council applied equally to the Official Receiver (as representative of the insolvent co-parcener) and to an alienee from him because they occupy the position of a co-parcener.
Consequently, the Court held that the earlier Madras decisions (1914 Mad. 226 and 1915 Mad. 1027) should be considered overruled with respect to this point by the Privy Council decision and that provision should not have been made in the decree for the marriages of defendants 7 and 8.

The Court therefore modified the lower Court's decree in light of these findings and ordered proportionate costs between the parties as appropriate.

Holding and Implications

Decree modified.

Direct effects on the parties (as determined in the opinion):

The plaintiffs are entitled to delivery of the one-seventh share purchased by them and are entitled to mesne profits, but those mesne profits are awarded from the date of the plaint (on the ground that possession was demanded and refused from that date), not from the date of purchase by reason of an asserted severance by filing insolvency.
The Court held that the filing of an insolvency petition or the adjudication of an insolvent does not, by itself, sever the joint family status; the Official Receiver and an alienee from him are entitled to joint possession and therefore mesne profits require proof of exclusion.
No provision is to be made out of the joint family estate for the future marriage expenses of defendants 7 and 8; the Court applied the Privy Council principle (1922 P.C. 201) that after severance of joint family status no obligation rests on the joint family in respect of future marriages of a co-parcener who was unmarried at the time of severance.
Costs: the parties will pay and receive proportionate costs as directed by the Court.

Broader legal implication identified in the opinion: the Court treated the Privy Council decision in 1922 P.C. 201 as superseding the earlier Madras decisions (specifically 1914 Mad. 226 and 1915 Mad. 1027) on the question whether provision should be made for future marriage expenses upon partition after severance.

P.R.S/G.B

Show all summary ...

Madhavan Nair, J.:— This second appeal by defendants 2 and 4 to 9 is against the decree of the District Judge of Guntur in Appeal Nos. 50 and 77 of 1925 directing the partition of the suit properties into seven shares and delivery of one seventh share to the plaintiffs together with mesne profits, which modified the preliminary decree for partition passed by the Subordinate Judge of Guntur in O.S No. 55 of 1922. The facts necessary for the disposal of this second appeal are briefly these. The suit properties belong to a Joint Hindu family consisting of defendants 2 to 9. Defendant 2 is the father and defendants 3 to 8 are his sons. Defendant 9 is the son of defendant 3. In I.P No. 14 of 1915 on the file of the District Court of Guntur, defendant 3 was adjudicated an insolvent and defendant 10 was appointed the Official Receiver. In the course of his administration of the insolvent's estate, defendant 10 sold by public auction the one-seventh share of defendants 3 and 9 in the suit properties. Plaintiff 1 purchased one-seventh share in certain specified lots under the sale deed executed by the Official Receiver, Ex. A dated 11th February 1919. The one-seventh share in the other lots; was sold to defendant 1, the son-in-law defendant 2, under the sale deed Ex. B dated 12th February 1919. Plaintiff 2 is the son of plaintiff 1. Plaintiff 1 conveyed a portion of his properties to plaintiff 3 by a registered sale deed dated 2nd October 1920.

2. The suit out of which this second appeal arises was instituted by the plaintiffs for partition of the suit properties into seven equal shares and delivery to them of the one-seventh share purchased by them together with mesne profits. Issues 3 and 5 in the suit, with the decision of which we are mainly concerned, in the second appeal are as follows. Issue 3. Whether the plaintiffs are entitled to any, and, if so, to what mesne profits against the defendants 2 and 4 to 8? Issue 5. Whether the defendants 7 end 8 are entitled to have provision made out of the joint estate for the expenses of their marriage. With respect to issue 3 plaintiffs contended that they are entitled to get mesne profits from the date of their purchase of the share of the properties claimed by them, i.e, from 11th February 1919, while the defendants contended that they were entitled to mesne profits only from the date of the preliminary decree for partition, i.e, from 12th November 1924. In 1915 Mad. 4531, it was held, disapproving some previous decisions, that a purchaser of an undivided share of a member of a joint Hindu family does not thereby become a tenant-in-common with the other members and hence he is not entitled to any mesne profits in respect of his share for the period between the date of his purchase and the date of his suit for partition. Relying mainly on this decision the learned Subordinate Judge held that the plaintiffs were entitled to claim mesne profits from the date of the suit. It will be observed that he disallowed the contentions of both the plaintiffs and the defendants on this point. With respect to issue 5 it was contended by the defendants that the marriage expenses of defendants 7 and 8 should be provided for before the properties are equally partitioned. The plaintiffs contended that no such provisions out of the joint family funds could be made. In 1915 Mad. 10272, it was held following 1914 Mad 2263 and dissenting from 1917 Mad. 4774, that in partition decrees provision should be made for the marriage expenses of the unmarried members of the family. Following this decision the learned Subordinate Judge held that provision has to be made out of the joint family estate for the marriage of the defendants 7 and 8. In the result the Subordinate Judge passed a decree directing the delivery of one-seventh share to the plaintiffs together with mesne profits from the date of the plaint making a portion of the marriage expenses a charge on the properties alloted to them. Against the above decree both the plaintiffs and the defendants preferred appeals to the District Court. On the question of mesne profits raised in issue 3 the learned District Judge held that the plaintiffs were entitled to claim mesne profits from the date when they purchased the suit properties, he being of opinion that the filing of the insolvency petition must be taken to involve a declaration of severance of the joint family status and that in consequence the vendee was a tenant-in-common from the date of the sale and is entitled to profits from that date. On the question of marriage expanses raised in issue 5 the learned District Judge held relying on 1922 P.C 2015 that the unmarried members were not entitled to have any provision made for the expenses of their marriage. In his view this decision superseded the decisions in 1914 Mad. 226 and 1915 Mad 1027. In the light of the above findings the decree of the Subordinate Judge was modified by the District Judge. It will be observed that on both the questions at issue between the parties the District Judge accepted in toto the contention of the plaintiffs.

3. In second appeal Mr. Baghava Rao, argues that the decision of the learned District Judge is wrong on both the questions and that he should have held that the plaintiffs are entitled to mesne profits only from the date of the preliminary decree and that their properties should be charged with the payment of the marriage expenses of defendants 7 and 8.

4. On the first point, namely, that relating to mesne profits, we have no doubt that the learned District Judge's decision that the filing of an insolvency petition brings about a severance of joint family status cannot be upheld. No authority in support of the position is mentioned in the lower Court's judgment, nor has any been quoted before us by the learned counsel justifying the conclusion. On principle, we cannot see how the filing of an application for insolvency can be taken to involve a declaration of severance of the joint family status. The immediate object of a petition in insolvency by a debtor is to get exemption from arrest; and it must be obvious that a stranger cannot by any conduct of his enforce a severance of the joint family status. To hold that the filing of an insolvency application by a member of a joint Hindu family amounts to an unequivocal and unambiguous declaration to sever from the family, is to state a proposition supported neither by authority nor by principle. No doubt the filing of a petition in insolvency followed by adjudication gives certain legal rights to the Official Receiver with respect to the share of the property belonging to the insolvent. His share vests in the Official Receiver and the disposing power of the insolvent with respect to his son's share for paying debts not contracted for an immoral purpose also vests in him. But this result does not bring about any severance in the joint family status of the insolvent. We must hold that neither the filing of an insolvency petition nor the adjudication of the applicant as an insolvent can sever the joint family status and that in consequence we cannot hold that the vendee was a tenant-in-common from the date of the sale and is entitled to profits from that date.

5. In our Court it has been held that the Official Assignee is entitled on the insolvency of any coparcener to joint possession with the other co-parceners: see 1923 Mad. 556 and 1928 Mad. 5317, and also Mulla's Hindu Law, p. 311. In the latter of the two cases just mentioned, namely, 1928 Mad. 531, the same privilege of joint possession with respect to an insolvent's share is accorded to an alienee from the Official Receiver also. It is clear law that one co-parcener entitled to joint possession with another co-parcener cannot claim mesne profits unless he shows that he has been excluded from enjoyment of the properties by the other co-parcener. It follows therefore that unless it is shown that on the date of the sale by the Official Receiver possession of the properties was demanded by the vendee and refused by the appellants it cannot be held that the plaintiffs are entitled to mesne profits from the date of the sale. In this case the question of exclusion was not raised as a specific point in issue and no evidence has been adduced on it, though there is a statement in the plaint to the effect that:

“after the purchase of the properties, in spite of repeated demands the defendants have not chosen to effect a division of the properties or to at the plaintiffs in possession, etc.”

6. But it is clear that possession may well be taken to have been demanded and refused from the date of the plaint. We would therefore hold, agreeing with the Subordinate Judge though on a different ground, that the plaintiffs are entitled to mesne profits from the contesting defendants from the date of plaint. The present case being one of an alienation by the Official Receiver who is the representative of the insolvent, the applicability of 1915 Mad. 453 relied on by the learned Subordinate Judge, where it was held that:

“a purchaser of an undivided share of a joint Hindu family does not thereby become a tenant-in-common with the other members and hence he is not entitled to mesne profits in respect of his share from the date of his purchase,”

does not arise for consideration; and it is conceded that the argument that the purchaser is entitled to mesne profits only from the date of the preliminary decree for partition cannot be pressed, the Official Assignee and the purchaser from him of the insolvent's property being held to be entitled to joint possession along with the co-parcener. The next point relates to the question whether provision should be made in the decree for the marriage expenses of two of the brothers of the insolvent, namely, defendants 7 and 8. In summarising the conclusions arrived at by the lower Courts, the decisions bearing on the question have already been mentioned. The decisions in 1914 Mad. 226 and 1915 Mad. 1027 support the contention of the appellants that such provision should be made before the properties are finally partitioned. In 1917 Mad. 477, which refused to follows 1914 Mad. 226, Sankaran Nair and Oldfield, JJ., held that an unmarried co-parcener is not entitled to have an anticipatory provision made for the ex-penses of his future marriage at partition but they allowed the claim for the expenses of the marriage that took place before the decree in the first Court on the ground that

“joint family status was not dis-severed until the decree for partition and that the joint; family continued until then.”

7. This decision was taken up in appeal I to the Privy Council and the judgment of their Lordships of the Judicial Committee is reported in 1922 P.C 201. On the point under consideration their Lordships, following 1916 P.C 1048, which did not exist when 1917 Mad. 477 was decided, held that the institution of a suit for Partition by a member of a joint Hindu family effects a severance of the joint status of the family and a member of the family who is then unmarried, is not entitled to have a provision made in the partition for his marriage expenses although he marries before the decree in the suit is made. According to this decision the obligation to provide for future marriages ceases on severance of the joint family status.

8. This decision is relied on by the plaintiffs-respondents in support of their contention. The appellants argue that the decision of the Privy Council does not supersede the decisions in 1914 Mad. 226 and 1915 Mad. 1027 and further that the Privy Council decision is inapplicable to the present case, inasmuch as the case before the Judicial Committee dealt with the question of the expenses of marriage in a suit for partition instituted by some of the co-parceners against the remaining members of the family, whereas the present suit is not one instituted by a coparcener. In our opinion both the arguments should be overruled. Though the two decisions in 1914 Mad. 226 and 1915 Mad 1027 are not actually referred to in the judgment of the Privy Council, it is clear from the arguments that both the decisions were brought to the notice of their Lordships and then they enunciated the correct principle to be applied to cases of this kind, that principle being this, that after severance of joint family status had been effected no obligation rests on the joint family in respect of the future marriage of a co-parcener who was unmarried at the time of the severance. This being the correct principle to be applied, we think that the previous decisions of this Court in 1914 Mad. 226 and 1915 Mad. 1027 should be considered to be overruled by the Privy Council decision in 1922 P.C 201, with respect to the point under consideration. We are also of the opinion that the principle of the Privy Council decision would apply to the present case also, inasmuch as the Official Receiver as the representative of the insolvent co-parcener occupies the position of a co-parcener himself, and the alienee from him stands in his shoes and may therefore be said to be in the position of a co-parcener. We must therefore hold, agreeing with the learned District Judge, that provision should not have been made in the decree for the marriages of defendants 7 and 8. In the result the lower Court's decree will be modified in the light of the above findings. The parties will pay and receive proportionate costs.