NOTES ON LAW OF SUCCESSION (HINDU LAW) Justice R Subramanian
Justice R Subramanian
I. EVOLUTION OF LAW RELATING TO SUCCESSION
The law relating to succession amongst Hindus was made subject matter of legislation for the first time by introduction of the Caste Disabilities Removal Act 1850. The major change introduced by the said Act was to enable a convert to succeed to the estate. However, the descendants of a convert were disqualified from inheriting. Section 26 of the Hindu Succession Act 1956 is to the same effect.
Another major landmark in the law relating to succession amongst Hindus was the Hindu’s Wills Act 1870 which enabled Hindus to dispose of their property by Will. The Madras Presidency came out with the Hindu Transfer of Bequests Act in 1914. Both these resulted in the Hindus’ Disposition of Property Act 1916. The provisions of the Hindu Wills Act 1870 were incorporated in the Indian Succession Act 1925. The disqualifications hitherto suffered by lunatics and idiots were removed by the Hindu Inheritance (Removal of Disabilities) Act 1928.
Another important development of Hindu Law was the introduction of the Hindu Women’s Right to Property Act 1937. This piece of legislation can be said to be the first step towards grant of proprietary rights to female Hindus. Though the law as enacted, gave limited rights to Hindu women over her husband’s property did not make any difference in the nature of the property, The Federal Court in its judgment reported in AIR 1941 FC Page 72, which arose out of a reference made under Section 213 of the Government of India Act, held that the Act did not operate to regulate succession to agricultural lands in the Governor’s provinces. The validity of the Act was upheld by the Federal Court with reference to non-agricultural properties. Another leading decision on this is Umayal Achi –VS- Lakshmi Achi reported in AIR 1945 FC Page 25. These judgments of the Federal Court resulted in various provinces passing legislations to give limited rights to Hindu women over her husband’s property. The Madras Legislature also passed the Madras Act 26 of 1947 to remedy the effect of the decision of the Federal Court. However, this amendment was made with limited retrospective effect from 26.11.1946. That is to say that the provisions of the Act 26 of 1947 would not apply to the property of a male Hindu who died prior to 26.11.1946. The effect of the amending Act passed by the Madras Legislature was considered by a Division Bench of the Madras High Court in 1955 (2) MLJ Page 302 wherein it was held that the wife of a male Hindu who had died prior to 26.11.1946 would not acquire a limited right in agricultural lands as per the provisions of the Act 26 of 1947. This limited right which was conferred on a female Hindu over her husband’s share in the co-parcenary property would blossom into an absolute ownership as per the provisions of Section 14 (1) of the Hindu Succession Act 1956. The effect of a testamentary or a non-testamentary instrument conferring such limited interest and the question of possession or the interpretation of the words “property possessed by a female Hindu” occurring Sub Section 1 of Section 14 has been a subject matter of various judicial pronouncements.
II. HINDU SUCCESSION ACT 1956 (ACT 30 OF 1956)
The Hindu Succession Act 1956 (Act 30 of 1956) was enacted with the avowed object of codifying the law relating to intestate succession among Hindus. Apart from merely codifying the law the Act also brought in certain rules of succession which, for the first time, gave rights to daughters in the co-parcenary property of a Joint Hindu Family. One another important feature of the Act is Section 14 of the Act which provided for enlargement of rights of a female Hindu who is in possession of the property on the on the date of the Act. This seeks to put an end to the concept of limited estate introduced by the Hindu Women’s Right to Property Act 1937 which was further amended in 1947 to include within its ambit agricultural lands also.
The Act however does not apply to “RENOUNCANTS” of the Union Territory of Pondicherry by virtue of Sub Section 2-A introduced by Regulation 7 of 1963. The Hindu Succession Act 1956 was extended and made applicable to Pondicherry Territory with effect from 01.10.1963. See 2016 (4) MLJ 562(paras 43&53) and 2017 SCC OnLine Mad 2377 on who is a ”RENOUNCANT”.
Section 4 of the Act provides for overriding effect to the provisions of this Act in as much as it provides that any text, rule or interpretation of Hindu Law or usage as part of that Law in force immediately before the commencement of this Act, shall cease to have effect with respect to any matter for which provision has been made in this Act.
Clause (b) of Section 4 (1) provides that any other Law in force immediately before the commencement of the Act shall cease to apply to Hindus in so far as it is inconsistent with the provisions contained in the Act 30 of 1956.
The effect of the above provisions is that the Hindu Succession Act 1956 would alone govern intestate succession among Hindus and other persons who are included in the definition of a Hindu by the Act namely a Sikh, Buddhist or a Jaina.
The following are the important provisions of the Act which would have a role in matters relating to partition of the estate of a Hindu.
a. Section 6 which provides for devolution of interest in co-parcenary property.
b. Section 8 which lays down the general rules of succession in case of males.
c. Section 9 which provides for succession among the heirs specified in the schedules.
d. Section 10 which provides for distribution of property among heirs in Class I of the Schedule.
e. Section 11 which provides for distribution of property among heirs in Class II of the Schedule.
f. Section 12 which provides for order of succession among Agnates and Cognates.
g. Section 14 which provides for an enlargement of limited estate held by a female Hindu if she is in possession of the property on the date of the commencement of Act 30 of 1956.
h. Section 15 which deals with succession in case of female Hindus.
i. Section 16 which provides for order of succession and the manner of distribution among the heirs of female Hindu.
j. Section 20 which provides for rights to a child in the womb at the time of the death of the male Hindu.
k. Section 22 which provides for preferential right to acquire property in certain cases.
l. Sections 23 and 24 (now repealed) which make a special provision regarding dwelling houses and widows who remarry.
m. Sections 25 and 26 which disqualify murderers and descendants of a convert from inheriting property.
n. Section 30 which gave a right to a Hindu to execute a Will in respect of his/her share in the co-parcenary property.
Section 6 as it stood prior to amendments introduced by Tamilnadu Act 1 of 1990 and The Hindu Succession Amendment Act 39 of 2005 (Central Act) provided for a scheme of succession to the co-parcenary property of a male Hindu. Under the old section, as it stood prior to the amendments a daughter of a co-parcener did not get a right by birth in the co-parcenary property. To that extent the customary Hindu Law that prevailed prior to the introduction of the Hindu Succession Act 1956 was protected. However Section 6 made a inroad in the matter of succession to co-parcenary property in as much as it provided for carving out of the interest of a male Hindu who dies after the commencement of the said Act and made provision for its devolution under Section 8 in cases where the deceased leaves behind Female heirs or male heirs claiming under such female heirs.
This change enables wife, mother, daughters, etc., of a male Hindu to claim a share in the interest of the male Hindu in the co-parcenary property. The question that would arise is what is the meaning of the words “his interest” in the Mitakshara co-parcenary? Explanation to Section 6 gives the answer when it says that interest of a Hindu Mitakshara co-parcener shall mean the share in the property that would have been allotted to him if a partition had taken place just prior to his death. This concept of partition is generally termed as “Notional Partition”. The effect is to assume a partition just prior to the death of the male Hindu between him and the co-parceners and determine the share that would have been allotted to him in such partition. That share will again have to be partitioned between the surviving Class 1 heirs. Thus a son of a male Hindu who becomes a co-parcener by birth will get a larger share than that of the female heirs namely the share which he gets in his capacity as a co-parcener and a share which he gets in his capacity as a Class 1 heir of the father. He gets two kinds of properties in two different capacities. One as a coparcener under Section 6 and the other as a Class I heir under Section 8.
Another important question that would arise while dealing with succession among Hindus is the status of a child born after 1956. A general impression is carried by certain quarters that the Hindu Succession Act 1956 has done away with the coparcenary system. A reading of Section 4 of the said Act along with Section 6 would clearly demonstrate that the object of the 1956 Act or the amending Act of the year 2005 was not to completely do away with the coparcenary system. In fact, the succession to coparcenary property has been specifically protected under the unamended section 6 as well as the amended section 6. The very fact that section 4 protects the applicability of customary Hindu Law which is not inconsistent with the provisions of the 1956 Act would by itself demonstrate that the intention of the legislature was not to completely do away with coparcenary. However, the courts in some cases have come to a conclusion that children born after 1956 would not acquire the status of a coparcener. There are conflicting judgments of the Honourable Supreme Court on this issue.
The following judgments of the Honourable Supreme Court conclude that a child born after 1956 would not become a coparcener and would not acquire a right by birth:
a. Sheela Devi and others Vs Lal Chand and another 2007(1) MLJ 797
b. Bhanwar Singh Vs Puran and others 2008(3) SCC 87
c. M. Yogendra and others Vs Leelamma and others 2009(7) MLJ 1086
While the following judgments treated children born after 1956 as coparceners:
a. Dharma Shamarao Agalawe Vs Pandurang Miragu Agalawe 1988(2) SCC 126
b. Ass Kaur Vs Kartar Singh 2007(5) SCC 561
c. Rohit Chauhan Vs Surinder Singh 2013(9) SCC 419
d. Prakash Vs Phulavathy 2015(8) MLJ 115 SC.
Though there was a reference to a larger bench of the Honourable Supreme Court on the above conflict in Balhar Singh Vs Sarvan Singh and another, I find that the civil appeal itself was withdrawn when it was listed for hearing before a larger bench on 12-01-2017 leaving the reference unanswered. However, in a later decision namely Uttam Vs Saubagh Singh 2016(2) MLJ 536(SC) the Honourable Supreme Court had reiterated the position of law as laid down in Additional Commissioner of Income Tax Vs P.L.Karuppan Chettiar AIR 1979 Mad 1 and Commissioner Wealth Tax Kanpur etc. Vs Chander Sen 1986 (3) SCC567. Again, in Shayam Narayan Prasad Vs Krishna Prasad reported in 2018 (7) SCC 646 a 2 judge bench of the Honourable Supreme Court had reiterated the position of law regarding the character of the property that devolves under Section 6 on a coparcener. The Honourable Supreme Court had held that a property which had devolved on a coparcener by operation of section 6 would partake the character of ancestral property in his hands vis-a-vis his children. Reference can be made to the judgment and Krishnamoorthy Vs Pondeepankar in 2017 (4) MLJ 5714 further clarity on this aspect. I must point out that the view that Children born after 1956 will not get a right by Birth would defeat the very object of the Amending Acts introduced by various state legislatures in the late 80s and early 90s as well as Act 39/2005.
III. AMENDMENTS INTRODUCED BY TAMILNADU ACT 1 OF 1990
The State of Tamilnadu by the Amendment Act 1 of 1990 introduced Sections 29-A, B, C giving equal rights to daughters in matters of succession to co-parcenary property. This amendment brought in a whole new concept hitherto unknown to Hindu Law. For the first time a daughter of a male Hindu dying intestate was given the same share as that of a son. This was however subject to two exceptions namely (i) a daughter married prior to the coming into the force of the Act i.e., 25.03.1989 will not be entitled to an equal share and (ii) Clause (ii) of Section 29-A relating to partition was made inapplicable if a partition had taken place prior to 25.03.1989. This would mean that a partition which had already taken place cannot be reopened by reason of the death of the father after 25.03.1989. The question as to what amounts to a partition was considered in Sundarambal (infra), Saireddy Vs Narayan Reddy 1991(3) SCC 647 and Shanmuga Udayar Vs Sivanandam 1993(2) MLJ 617. Sai Reddy’s case made it clear that it should be a complete partition resulting in actual division or a Final decree in a suit. Section 29-B provides that the interest of a female Hindu in the Mitakshara co-parcenary property obtained by her under Section 29-A shall devolve by survivorship upon the remaining members of the co-parcenary in the absence of son or daughter or children of a predeceased son or daughter. Section 29-B seeks to reaffirm the provisions of Section 15 (2).
IV. THE HINDU SUCCESSION AMENDMENT ACT 39 OF 2005
The above Central Enactment seeks to achieve the same object sought to be achieved by the Tamilnadu Act 1 of 1990. However, the disqualification contained in the Tamilnadu Act of a daughter married prior to 25.03.1989 is absent in the Central Enactment. The proviso to old Section 6 has been suitably modified and incorporated as Sub Section 3. Explanation II to old Section 6 is omitted by the amendment. This has created a situation by which a divided son or his heirs can lay claim over the “interest” of the father on his intestacy. One unexpected and undesired result of omission of the Explanation 2 by Act 39 of 2005 is that the share of the Widow gets reduced.
One question which has haunted the judiciary is “whether the two enactments namely Act 1 of 1990 and Act 39 of 2005 are retrospective or prospective in their application” In one of the earliest decisions, almost immediately after coming into the force of Act 1 of 1990, reported in Sundarambal’s case 1991 (2) MLJ 199 Hon’ble Justice M.Srinivasan took the view that the benefits of the amending Act would be available only to a case where the father of the female who is claiming a share had died after the coming into force of the Tamilnadu Act 1 of 1990 i.e., 25.03.1989. The reasons are not far to seek. The language of the amending Act makes a daughter of a coparcener, a coparcener along with her father alone and not with her brother or brothers. Further by operation of Section 6 of the parent Act a particular quantum of share vests in the other heirs on the death of the male Hindu. The amending Act does not provide for divesting of such vested shares. There is possibility of the shares that had already vested in the other female heirs namely the widow and daughters married prior to 25.03.1989 being reduced because of the application of the Act to the succession of a male Hindu who had died prior to 25.03.1989 or 09-09-2005 as the case may be. This is precisely not the object sought to be achieved by the amending Acts.
Subsequently several other judgments had come in many of which take the same view as that of the Hon’ble Justice M.Srinivasan. In the decision reported in 2012 (5) LW 378 a Division Bench of the Madras High Court had an occasion to consider the effect of the provisions of the Central Act namely Act 39 of 2005. The Division Bench had framed the following point for consideration “By virtue of the Hindu Succession (Amendment) Act 39 of 2005, whether the plaintiff is entitled to 1/3rd share in the suit properties?” The admitted case of the parties in the said decision was that the father Purusotham Chettiar had died on 30.11.2001 and the plaintiff was married in 1981-82. Therefore, the Division Bench concluded that she cannot claim the benefits under Section 29-A of Act 1 of 1990. However, the plaintiff claimed that the Central Act namely Act 39 of 2005 is retrospective in effect and therefore irrespective of the date of the death of the father she would be entitled to a share as a co-parcener. The Division Bench however repelled her contentions and held that the Hindu Succession (Amendment) Act 39 of 2005 is prospective in operation and if the father had died prior to the coming into the force of the said Act i.e., 09-09-2005 the benefit of the provisions of the said Act would not be available to a daughter to claim a share equal to that of a son. The latest being the judgment of Hon’ble Justice M. Duraisamy reported in 2013 (2) CTC page 160 and the judgment of Hon’ble Justice P.R. Shivakumar reported in 2013 (4) LW 193. These decisions of the Madras High Court had followed the judgments of the Hon’ble Supreme Court reported in 2006 (8) SCC 581 (Sheela Devi) and 2009 (6) SCC 99 (G. Sekar). The same view was reiterated by the Honb’ble Supreme Court in Prakash Vs Pholavathi 2016 (2) SCC 36.
However, two judgments of the Hon’ble Supreme Court reported in 2011 (9) SCC 788 (Ganduri Kotteeswaramma) and 2011 (6) SCC 462(Prema Vs Nanje Gowda) had held that the provisions of the 2005 Act are retrospective in operation. In the decision reported in 2013 (2) CTC 641 the Madras High Court had chosen to follow the above two judgments. Thus, it could be seen that there is a conflict of judicial opinion on the retrospectivity or otherwise of the amending Acts 1 of 1990 and 39 of 2005. As on date the said question has been referred to a larger bench of the Hon’ble Supreme Court in Vineeta Sharma Vs Rakesh Sharma (2019 (6) SCC 162).
Yet another issue relating to succession under Hindu Law that is pending as a reference to a larger bench in the Hon’ble Supreme Court is the right of illegitimate children under Section 16 of the Hindu Marriage Act. While Jinia Keotin 2003(1) SCC730, Neelamma 2006(9) SCC612 and Bharatha Matha 2010(11) SCC483 took the view that illegitimate children cannot claim right as coparceners Revanna Siddappa 2011(11) SCC 1 disagreed with all the three earlier Judgments and referred the issue to a Larger Bench. The same is also pending as pointed out in Jitender Kumar Vs Jasbir Singh on 21-10-2019.
Sub Section 2 of Section 6 provides that any property which a female Hindu inherits as a co-parcener by virtue of Sub Section 1 of Section 6 shall be held by her as a co-parcener with the incidents of the co-parcenary ownership. The right given to a male Hindu under Section 30 to dispose of the property by Will is also protected under Section 6 (2) as amended by Act 39 of 2005.
V. APPLICABILITY OF ACT 1 OF 1989 AFTER INTRODUCTION OF THE ACT 39 OF 2005
Recently in the decision reported in 2013 (5) CTC Page 49 the Hon’ble Justice A. Selvam has held that Section 29-A of Act 1 of 1990 would prevail in Tamilnadu even after the introduction of Act 39 of 2005 by the Union Government. I am afraid that the said dictum may not be correct. Unfortunately, the attention of the Hon’ble Judge has not been drawn to the proviso to Article 254 of the Constitution of India which enables the Parliament to make Laws which add to, amend, vary or repeal the Law so made by the Legislature of the State. When a Law made by the Legislature of the State regarding a matter enumerated in the concurrent list contains any provision which is repugnant to the provisions of an earlier Law made by the Parliament the Law made by the State, if it had received the assent of the President prevail in that State. However if the Parliament enacts a Law on the same subject subsequent to the State Law which has received the assent of the President, which renders the State Law repugnant to the Central Legislation, the State Law would become void to the extent of the inconsistency or repugnancy. This could be rectified by the State concerned by re-enacting the Law and obtaining presidential assent for the re-enacted Law. The Hon’ble Supreme Court had held that such a re-enactment is necessary in the judgment reported in 1995 (4) SCC 718. Therefore in the light of the above categorical pronouncement of the Hon’ble Supreme Court regarding the validity of a State Law, the provisions of which become inconsistent with or repugnant to, a subsequent Central Legislation the view of the Hon’ble Justice A. Selvam in 2013 (5) CTC 49 cannot be said to be correct. Therefore, the provisions of the Central Enactment namely the amending Act 39 of 2005 alone would prevail in the State of Tamilnadu.
VI. BURDEN OF PROOF REGARDING CO-PARCENARY PROPERTY
It has been held in catena of cases that the existence of a Joint Family does not by itself imply existence of a Joint Family property or co-parcenary property. The initial burden of proving that the properties belong to a co-parcenary is on the person who claims it to be so. However once it is shown that the co-parcenary had properties which were income yielding and there was enough surplus, the burden shifts to the person who asserts independent title to show that the acquisitions were made out of his own earnings without the help of the income from the co-parcenary property. It will not the out of place to mention that the presumption relating to the property being co-parcenary property is much stronger in cases of acquisition in the name of the Manager/Elder Member of the Joint Family. In cases of acquisition of property in the names of female members and junior members the presumption is much weaker. It can be stated, without fear of contradiction, that the burden on a coparcener who claims that the property standing in the name of other coparceners was in fact acquired with the aid of Joint Family funds does not end with his proving availability of co-parcenary property. He must go one step further and show that the income from the co-parcenary property was sufficient to generate a surplus which would have been employed in the purchase of the property.
See: AIR 1983 SC 846, AIR 1953 SC 495, 1996 (2) LW 423, 1997 (2) LW 197
VII. NATURE OF PROPERTY IN THE HANDS OF A MALE HINDU
Another vital aspect which often calls for judicial scrutiny is the nature of the property in the hands of a male Hindu. This is because of different kinds of devolution of interest regarding co-parcenary property and self-acquired property contemplated under the Act. The question as to the nature of the property often arises in cases where there is a devolution of property from different sources. The property allotted to a male Hindu in a partition between him and his father is treated as ancestral property when it comes to partition between him and his children. However, the property inherited by him from such divided father is treated as his self-acquisition. Therefore in a case where a father and son enter into a partition and properties are allotted to each of them and the property allotted to the father devolves on the son on the death of the father, there are two kinds of properties in the hands of the son. The first being the property allotted to him in the partition between him and his father and the second being the property inherited by him on the death of his father. The first category becomes ancestral property once children are born to the son, but the second category remains his self-acquisition. On the death of the son the first category devolves as per Section 6 of the Act and the second category devolves as per Section 8 of the Act. This is the Law declared by a Full Bench of the Madras High Court in AIR 1979 Madras Page 1 which was subsequently affirmed by the Hon’ble Supreme Court in AIR 1987 (SC) 558.
Yet another question that often arises is what will be the character of the property inherited by a male Hindu from his father who died after 1956 vis-à-vis his children. A clue to this problem is provided by the Judgment of the Bench of the Madras High Court reported in AIR 1979 Madras 1 as affirmed in AIR 1987 SC 558. Any separate property inherited by a male Hindu from his father who dies after 1956 will not partake the character of co-parcenary property. It will be held by him as his individual property.
A sole surviving co-parcener takes the property of the co-parcenary as absolute owner thereof. However, if a son or daughter is born to him, they get a right by birth and the right of the Kartha/Sole surviving co-parcener diminishes and his absolute ownership is reduced to that of a Kartha of the co-parcenary. This has been reiterated by the Honb’le Supreme Court recently in Shyam Narayan Prasad Vs Krishna Prasad 2018(7) SCC 646.
VIII. EFFECT OF SECTION 14 (1) and (2) OF THE ACT
Section 14 (1) provides for enlargement of the estate of a female Hindu which was held by her as a limited owner. This Section seeks to remove the concept of a limited estate introduced by the Hindu Women’s Right to Property Act 1937. However, Section 14 (2) provides that if the property had been given to a female Hindu under a Will or any other instrument including a Decree of a Civil Court the said limited estate will not enlarge into an absolute estate. There was considerable difference of opinion among various High Courts on the interpretations of Section 14 (1) and 14 (2). Finally the Hon’ble Supreme Court in its celebrated judgment in Tulasamma –VS- Sesha Reddi [AIR 1977 (SC) 1944] held that a restricted estate obtained even under the documents referred to in Section 14 (2) would also enlarge if the women had even a semblance of a preexisting right which includes a right to maintenance. The Hon’ble Supreme Court held that Sub- Section 2 is in the nature of a proviso to Sub – Section 1. A very safe method of interpretation of a right of a Hindu women obtained by her under a document would be to see the date of the document. If the document which confers a limited estate is after the coming into the force of the Hindu Succession Act 1956 then there could be no enlargement of such a right into an absolute estate. Otherwise it should be construed that the document only recognises the then existing Law relating to rights of a female Hindu and irrespective of the restrictions in the document the limited right would enlarge into absolute ownership.
IX. SUCCESSION TO THE ESTATE OF A FEMALE HINDU
In so far as succession to the estate of a female Hindu Section 15 and 16 lay down the heirs as well as the rules of succession.
Section 15 (2) makes a departure from the general rules in as much as it provides for reversion of the property to the heirs of the ancestors in the event the female Hindu has no children. This is a salutary provision in as much as it provides that if a female Hindu has no children the property inherited by her from her father or mother will revert back to the heirs of her father. Similarly, the property inherited by the female Hindu from her husband or the father-in-law would revert back to the heirs of her husband in the absence of children.
Unfortunately, a wife of a predeceased son though is a Class-1 heir of her father-in-law is not the heir of her mother-in-law. This lacuna in the enactment needs to be rectified more so because the mother becomes the heir of the son and inherits a share in his property if the son should predecease the mother.
X. NOMINATION
Another vexed issue that often arises is nomination made by the deceased person in case of investments made by him or her. Whether a nominee becomes the heir of the person merely because of the nomination or he/she holds it in trust for the heirs is a question which confronts the Courts often. This issue was answered by the Hon’ble Supreme Court in AIR 2000 (SC) 2747 wherein the Hon’ble Supreme Court held that a nominee merely holds the property in trust for the heirs of the real owner.
XI. RIGHT OF PREMPTION
Section 22 of the Act confers a preferential right to the heirs in the case of intestate succession and Sub Section 2 provides that the value of such property/consideration will be fixed by the Court on application in the absence of an agreement between the parties. Sub Section 3 provides that if two or more heirs in Class-1 offer to purchase the share then the sale would be in favour of the highest bidder. It should be noted that this right conferred by Section 22 is available only to the Class-1 heirs and not others.
XII. SUCCESSION IN CASE OF CONVERSION
Section 26 is a special provision which deals with converts. It should be noted that the disqualification is incurred only by the descendants of the convert and not the convert himself/herself. Therefore, the application of the Section should be restricted only to the heirs of the convert who succeed to the estate of a deceased Hindu.
XIII. TESTAMENTARY SUCCESSION
Section 30 provides that a Hindu may dispose of by Will or other testamentary disposition any property which is capable of being so disposed of by him. The explanation to Section 30 is more important when it expands the meaning of the property which is capable of being disposed of by including the interest of a Hindu in a Mitakshara co-parcenary property.
XIV. QUESTION OF COURT FEE
Another important aspect relates to the Court fee payable in suits for partition instituted by co-parceners when there has been alienations by the Manager/Kartha. Section 37 of the Tamilnadu Court Fees and Suits Valuation Act 1955 provides for payment of Court fee in partition actions. Sub Section 4 of Section 37 provides that if the plaintiff or the defendant seek cancellation of a decree or a document of the nature specified in Section 40 separate fee shall be paid on the relief of cancellation as per Section 40.
However, the question whether a co-parcener should seek cancellation of the alienations made by the Kartha has paved way for certain judicial pronouncements. A full Bench of the Madras High Court (AIR 1956 MAD 670) had an occasion to deal with the above question. The question of law that was referred to the full Bench is as follows:- “Has the plaintiff who was a minor, has been made eo nominee a party to a sale deed or other document of alienation by his mother and guardian to pay Court fee under Section 7 (iv-A) of the Court Fees Act and pray for cancellation of the sale deed expressly or impliedly and pay Court fee under Section 7 (iv-A) of the Court Fees Act or can he ignore and bypass such alienations alleging illiteracy, ignorance, lack of worldly knowledge, undue influence, coercion, etc., and pray for mere possession of the lands paying Court fee under Section 7 (v) (b) of the Court Fees Act?
Will it make any difference if the mother executing the sale deed making him eo nominee a party is a guardian appointed under the Guardians and Wards Act?
Is the position of a sale deed executed by father of the minor as a guardian of the minor son and not as a manager of the Joint Family and head of the co-parcenary, anyway different from position of a sale deed executed by the mother as the guardian of the minor?”
The Hon’ble Full Bench while answering the said questions has observed as follows:-
“The cases cited at the Bar can be classified under two heads namely those in which the minor’s property are being dealt with by a guardian and the minor seeks a decision that such dealings are not binding on him and secondly, those in which the father or the manager of the joint family purporting to deal with the family properties acts as the guardian of the minor, who is only one of the members of the joint family. It seems to us that in the former case the minor is eo nominee a party to the transaction and he should seek to cancel the documents in which case Court fees has to be paid under Section 7 (iv-A) of the Act. But where the minor was only a member of the joint family and the transaction is on behalf of the joint family he could always ignore the transaction as not binding on the family and seek to recover possession.”
The Full Bench further observed as follows:-
“But where the document is executed by manager of the family and it is not binding on the family the minor or any other member can ignore the transaction and recover possession of the property. To such a case Section 7 (v) of the Court Fees Act would apply.”
The above judgment of the Hon’ble Full Bench was followed by a division bench of the Madras High Court in PB Ramjee and 2 others VS. PB Lakshmanaswamy Naidu and others reported in 1996 (1) CTC 661. The Hon’ble Division Bench has pointed out that, if the minor coparcener is made eo nominee a party to the sale deed, he has to seek to set aside the sale deed by paying appropriate court fee under Section 40 of the Tamil Nadu Court Fees and Suits Valuation Act before he could claim partition.
From the conclusion reached by the Hon’ble Full Bench as well as the Hon’ble Division Bench, it could be seen that a co-parcener suing for partition impugning the alienations made by the Manager/Kartha need not seek to set aside the alienations and pay Court fee under Section 40, he/she can ignore the document and sue for partition provided he/she is not made a party to the transaction.
XV. POWER OF THE FATHER TO MAKE GIFT OF CO-PARCENARY PROPERTY
The Hon’ble Supreme Court had recognized the power of a Hindu father to make Gift of a reasonable portion of the co-parcenary property to daughters in the decisions reported in AIR 1957 SC 434, AIR 1964 SC 510, AIR 1967 SC 569 and AIR 1968 SC 253. Those decision of the Hon’ble Supreme Court were followed by the Madras High Court in 85 Law Weekly Page 684. In 2004 (2) LW 388 two Judge Bench of the Supreme Court also recognized the right of a Hindu father to make a Gift within reasonable limits to a daughter. The question of reasonableness will depend on the facts of each case having regard to the properties held by the family. In 1995 (2) MLJ 549 a Division Bench of the Madras High Court while considering the burden of proof as to the reasonableness had held that the burden of proving that the Gift was within the reasonable limits is on the daughter who claims that the Gift is within a reasonable portion of the entire family properties.
