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

1. This appeal arises from a suit filed by the appellant Kanakarathanammal in the Court of the IInd Additional District judge, Bangalore (O. S. No. 39 of 1947-48) in which she claimed to recover possession of the properties described in the schedules attached to the plaint. Schedules 1 and 2 consist of movable and immovable properties, while schedule 3 refers to jewels and silverware. The appellant laid a claim to these properties as the sole heir of her mother Rajambal who died on September 13, 1946. Her case was that she was entitled to these properties exclusively under sub-clause (i) of Clause (1) of section 12 of the Mysore Hindu Law Womens Right Act 1933 (No. X of 1933) (hereinafter called the Act). A gold before which is an item of jewellery was described by her in schedule 4 and the same was claimed by her on the ground that it had been presented to her by her father before he died on March 20, 1947.2. The case set out in the plaint showed that according to the appellant the properties in schedules 1, 2 and 3 belonged exclusively to her mother and when she made a claim against the respondents in that behalf, they challenged her title. In connection, the appellant relied on the fact that a sale- deed had been executed in favour of her mother on April 1, 1942 for a consideration of Rs. 28,000/by Mr. Gibbs under which several pieces of land together with all buildings and erections standing thereon and movable property consisting of articles of furniture and other things set out in the Schedules attached to the sale-deed (Exbt. F), were covered.3. Respondent No. 1 Loganatha Mudliar alleged that on February 17, 1947, the father of the appellant had executed a will under which he had been appointed an executor and that as such executor, he obtained a probate under the said will, got possession of the properties and handed them over to Respondent No. 2 Mudaliar Sangham, by its President, as directed under the will. Respondents 1 and 2 thus set up a title in respect of the suit properties in the appellants father. Alternatively, they urged that even if the property belonged to the appellants mother, she would not be entitled to claim exclusive title to it, because by succession the said property would devolve upon the appellant and her brothers; and the appellants failure to join her brothers made the suit incompetent for non-joinder of necessary parses. The third respondent, Vasudeva setty and sons, admitted that he was in possession of the gold belt described in schedule 4, but urged that the appellants father had given it to him for purpose of sale and that a sum of Rs. 109-7-9 was due to him. He pleaded that he had no objection to hand it over to the rightful claimant, provided the amount due to him was repaid to him.4. On these pleadings, the trial Court framed six substantive issues, three of which were important. These three issues were :(1) whether the appellants father or mother was the real owner of the property described in Schedules 1 and 2; (2) whether the will set up by respondents 1 and 2 was genuine and valid in law; and (3) whether the suit was not maintainable on the ground that necessary parties had not been joined by the appellant. The learned trial Judge held that the appellants mother was the owner of the property described in Sch. 1. Regarding the movable property the trial Judge held with some variation that the items admitted by the respondents also belonged to the appellant. As regards the jewels, he found that they had never gone into the possession of respondents 1 and 2, and so, the appellants claim in respect of the said jewels was rejected. As to the gold belt mentioned in Sch. 4, the decision of the trial Court was that the appellant should recover the same from respondent No. 3 on her paying to him Rs. 109 and odd claimed by him. Having found the title of the appellants mother proved, the trial Judge came to the conclusion that the will executed by the appellants father was invalid. These findings, however, did not materially assist the appellant, because the learned Judge upheld the respondents plea that the suit was bad for non-joinder of necessary parties. In the result, the appellants suit was dismissed in regard to the main relief claimed by her.5. Against this decision, the appellant preferred an appeal before the High Court of Mysore (R.A. No.171 of 1951-52). The High Court has held that the main property described in Sch. I did not belong to the appellants mother, but to her father. It found that the sale-deed in respect of the property was taken by the appellants father in the name of the appellants mother benami. Having held that the appellant had not established her title to the said property, the High Court did not think it necessary to consider the validity of the finding of the trial Judge that the suit was bad for nonjoinder of necessary parties. It also did not think it necessary to consider whether the will had been proved or not. The appellant, however, succeeded before the High Court in respect of one minor point and that was in relation to her claim for the gold belt. The High Court has ordered that Respondent No. 3 should return the said gold belt to the appellant and that the appellant was not bound to pay to Respondent No. 3 the amount claimed by him. The result was that with a very slight modification, the decree passed by the trial Court was confirmed, though on a different ground. It is against this decree that the appellant has come to this Court by special leave. It appears that respondents 1 and 2 had also preferred an appeal in the High Court against a part of the decree passed by the trial Judge, and the said appeal was dismissed. With that part of the case, we are not concerned in the present appeal.

Reasoning: 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."