Case: Kanakarathanammal Vs. V. S. Loganatha Mudaliar And Another

the said co-mortgagors should be allowed to be impleaded before the Privy Council. In support of this plea, reliance was placed on the provisions of O. 1, R. 9 of the Code. In rejecting the said prayer, Sir George Lowndes who spoke for the Board observed that "they are unable to hold that the said Rule has any application to an appeal before the Board in a case where the defect has been brought to the notice of the party concerned from the very outset of the proceedings and he has had ample opportunity of remedying it in India."16. In the result, the appeal fails and is dismissed. The appellant has been granted special leave to file this appeal as a pauper. In the circumstances of this case, however, we direct that she need not pay the Court-fees which she would have had to pay if she had not been allowed to appeal as a pauper. There would be no order as to costs throughout.MUDHOLKAR, J.17. I regret my inability to agree with the conclusion of my learned brother Gajendragadkar J. on the second point and consequently with the ultimate decision of the appeal as proposed by him. My reasons for taking a different view are these :18. The sale deed on which the appellant relies admittedly stands in the name of her mother. It is no longer in dispute that the consideration for the transaction proceeded not from her mother but from her father. It was because of this latter circumstances that the respondents contended that the transaction was benami. After examining the entire evidence adduced by the parties, the trial court negatived the respondents contention. Though the High Court took a different view, my learned brother has held and in my opinion rightly, that the conclusion of the High Court was wrong and that the trial court was correct on this point. The position, therefore, that the property in question was that of the appellants mother at her death. The respondents, however, contended that even so the suit must fail because the appellant had failed to join her brothers as parties to the suit because they were co-heirs of their mother along with her. That would be the correct position under S. 12 of the Mysore Hindu Womens Rights Act provided the property is deemed to have been purchased by the mother herself. The short question, therefore, is whether upon the findings that the property was not purchased by the appellants father benami in the name of her mother and that the consideration for the transaction entirely flowed from the father, the inference must be that the property was purchased by the mother. No doubt, the sale deed stands in her name. But the fact remains that the consideration did not flow from her but from the appellants father. It is interesting to mention that on February, 9, 1948 the respondents counsel made an application under O. VI, Rr. 5 and 11, Code of Civil Procedure calling upon the appellant to furnish further particulars with regard to her claim to the property in question in view of S. 12 of the Mysore Hindu Womens Rights Act. She furnished the following particulars on February 17, 1948 :"The property detailed in Schedules I and II was all conveyed to Rajambal under one sale deed as stated in paragraph 5 of the plaint. She stood by her husband in his adversity sacrificing her possessions for him which she got as presents from her own parents. He was deeply attached to her, and indeed they were a loving couple. Out of love, affection and gratitude and with a view to make herself sufficient, he provided the money to acquire the property for her own absolute use, which she while alive had even decided and announced to give away to the plaintiff ultimately."The appellants case, therefore, clearly is that the purchase money was provided by her father for acquiring property for the absolute use of her mother. By negativing the finding of benami made by the High Court we are in effect holding that the property was acquired by the appellants father with his own money for her mother. In this state of affairs it is difficult to see how the transaction could be split up into two parts, i. e., a gift of the money by the father to the mother in the first instance and the purchase by the mother of that property subsequently with that money. In my judgment, upon the pleadings there is no scope for splitting up the transaction into parts like this. It is not even an alternative contention of the respondents that the transaction was in two parts and that what the father gifted was the money and not the property. It would be indeed an artificial way of looking at the transaction as was done by the trial court as being constituted of two parts. The transaction in my judgment is one indivisible whole, and that is, the father provided the money for acquiring the property in the mothers name. Therefore, in effect it was the father who purchased the property with the intention of conferring the beneficial interest solely upon the mother. Such a transaction must therefore amount to a gift. In that view the property would not fall under Cl. (d) of S. 10 of the Act but under Cl. (b) of that section. Therefore, the appellant would be the sole heir of her mother and the non-joinder of her brothers would not defeat the suit so far as she is concerned. In the result 1 would set aside the decree of the courts below in so far as the property in question, Beverley Estates, is concerned and decree the appellants suit with respect to it in addition to the property with respect to which she has already obtained a decree in the Courts below. I would further direct that the respondents will pay to the appellant proportionate costs in all the courts.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]8. It is true that the actual management of the property was done by the appellants father; but that would inevitably be so having regard to the fact that in ordinary Hindu families the property belonging exclusively to a female member would also be normally managed by the Manager of the family; so that the fact that appellants mother did not take actual part in the management of the property would not materially affect the appellants case that the property belonged to her mother. The rent was paid by the tenants and accepted by the appellants father; but that, again, would be consistent with what ordinarily happens in such matters in an undivided Hindu family. If the property belongs to the wife and the husband manages the property on her behalf, it would be idle to contend that the management by the husband of the properties is inconsistent with the title of his wife to the said properties. What we have said about the management of the properties would be equally true about the actual possession of the properties, because even if the wife was the owner of the properties, possession may continue with the husband as a matter of convenience. We are satisfied that the High Court did not correctly appreciate the effect of the several admissions made by the appellants father in respect of the title of his wife to the property in question. Therefore, we hold that the property had been purchased by the appellants mother in her own name though the consideration which was paid by her for the said transaction had been received by her from heris thus clear that all gifts received from the husband at any time would fall under S. 10(2)(b). The appellants argument is that as soon as it is found that the consideration for the sale proceeded solely from the appellants father it must follow that the property purchased with the said consideration is a gift by the husband to his wife. The fact that the property has been purchased in the name of the wife does not make any difference in substance. Two transactions have taken place, one a gift of the money by the husband to his wife, and the other purchase of the property with the said money in the name of the wife. Treating the two transactions as integrally connected, it should be held that the purchase itself was made by the husband in the name of his wife and that can hardly be distinguished from the gift of the said property to theenquiry as to whether the property was purchased with the money given by the husband to the wife would in that sense be foreign to S. 10(2) (d) gift of money which would fall under S. 10(2) (b) if converted into another kind of property would not help to take the property under the same clause, because the converted property assumes a different character and falls under S.10(2) (d). Take a case where the husband gifts a house to his wife, and later, the wife sells the house and purchases land with the proceeds realised from the said sale. It is, we think, difficult to accede to the argument that the land purchased with the sale-proceeds of the house should, like the house itself, be treated as a gift from the husband to the wife; but that is exactly what the appellants argument will inevitably mean. The gift that is contemplated by S. 10(2) (b) must be a gift of the very property in specie made by the husband or other relations therein mentioned. Therefore, we are satisfied that the trial Court was right in coming to the conclusion that even if the property belonged to the appellants mother, her failure to implead her brothers who would inherit the property along with her makes the suit incompetent. It is true that this question had not been considered by the High Court, but since it is a pure point of law depending upon the construction of S. 10 of the Act, we do not think it necessary to remand the case for that purpose to the High Court. Facts which are necessary to decide the question under S.10(2) have been found and there is no dispute aboutfact that the High Court came to the contrary conclusion on the question of title does not matter, because if the appellant wanted to cure the infirmity in her plaint, she should have presented an application in that behalf at the hearing of the appeal itself. In fact, no such application was made even to this Court until the appeal was allowed to stand over after it was heard. Under the circumstances, we do not think it would be possible for us to entertain the said application. In the result, the application for amendment isit is held that the appellants two brothers are co-heirs with her in respect of the properties left intestate by their mother, the present suit filed by the appellant partakes of the character of a suit for partition and in such a suit clearly the appellant alone would not be entitled to claim any relief against the respondents. The estate can be represented only when all the three heirs are before the Court. If the appellant persisted in proceedings with the suit on the basis that she was exclusively entitled to the suit property, she took the risk and it is now too late to allow her to rectify the mistake. In Naba Kumar Hazra v. Radhashyam Mahish, AIR 1931 PC 229   the Privy Council had to deal with a similar situation. In the suit from which that appeal arose, the plaintiff had failed to implead co-mortgagors and persisted in not joining them despite the pleas taken by the defendants that the co-mortgagors were necessary parties and in the end, it was urged on his behalf that the said co-mortgagors should be allowed to be impleaded before the Privy Council. In support of this plea, reliance was placed on the provisions of O. 1, R. 9 of the Code. In rejecting the said prayer, Sir George Lowndes who spoke for the Board observed that "they are unable to hold that the said Rule has any application to an appeal before the Board in a case where the defect has been brought to the notice of the party concerned from the very outset of the proceedings and he has had ample opportunity of remedying it in India."