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Andhra Pradesh High Court
Judges : CHANDRASEKHARA SASTRI, GOPALRAO EKBOLE, MANOHAR PERSHAD, NARASIMHAM, P.CHANDRA REDDY
Katragadda China Anjaneyulu - Appellant
Versus
Kattragadda China Ramayya - Respondent
Decided On : 08-10-64
HINDU LAW - JOINT FAMILY - PARTITION - RELINQUISHMENT OF INTEREST BY A COPARCENER - EFFECT - DOES NOT AMOUNT TO PARTITION - AFTER-BORN SONS CANNOT CLAIM A SHARE IN THE FAMILY PROPERTY.
Fact of the Case:
One Katragadda Chinna Ramiah, his son, Nageswara Rao and the latter's only son, Pedda Anjaneyulu constituted at the relevant time an undivided Hindu family governed by the Mitakshara school of Law. Nageswara Rao executed a document relinquishing his interest in the joint family properties in favour of his father and son. Later, a creditor of Nageswara Rao laid an action on the foot of promissory note in the Court of the District Munsif, Tenali, adding his son and father as defendants 2 and 3 respectively. In that suit defendants 2 and 3 were ultimately exonerated but a decree was passed against Nageswara Rao personally. In execution of that decree the decree-holder proceeded against the family properties. The father and son of Nageswara Rao i. e. , Chinna Ramaiah and Pedda Anjaneyulu, intervened with claims on the objection that that these properties were not liable to be proceeded against. The executing court, while releasing the half-share of Chinna Ramaiah, sustained the attachment as regards the half share of Pedda Anjaneyuly being of opinion that the prepartition debts of the father could be recovered from the properties that fell to the share of the son. Family, when the matter reached the High Court of Madras, the appeal of Pedda Anjaneyulu was accepted. It was ruled by the Full Bench of that Court to which the matter was referred on account of the conflict of the judicial opinion, that the decree obtained against the father alone could not be enforced against the properties allotted to the share of his son at the family partition. Pedda Anjaneyuly died on 12-10-1949 and this made Chinna Ramaiah the sole surviving co-parcener. A few years later, a creditor of the family obtained decrees against Chinna Ramaiah and in execution thereof attached item 4 of the plaint A schedule and a portion of the B schedule properties. At that juncture, an after-born son of Nageswara Rao filed a petition under Order 21, rule 58 C. P. C. to raise properties. The claim was disallowed except as respects a portion of one of the items attached. Thereafter, these properties were brought to sale and were purchased by third parties. The first plaintiff then commenced this litigation for partition of the plaint A and B schedule properties into two equal shares and for separate possession of his half share as also to set aside the claim order in E. A. No. 441 of 1955 making his grandfather, the decree-holder and the auction-purchaser as defendants 1 to 5.
Finding of the Court:
The relinquishment of a share by one of the co-parceners. In favour of the other members does not alter the status of the joint family. The releasor alone separates himself from the family while others continue as members of an undivided family. Mitakshara treated the estate of co-parceners as held is entirely without recognition of share and defined partition as the adjustment of diverse rights regarding the whole by distributing them in particular portions of the aggregate. The relinquishment by a co-parcener does not require either the adjustment of diverse rights of the division of wealth in definite portions. It only results in the extinction of his rights in the family properties and his separation from the family. That being so, it cannot be predicted that a relinquishment of his interest by one of the co-parceners in the family estate is tantamount to a partition of the joint family wealth. To put it differently a partition of the family properties involves definement of shares, whereas a release by a member of an undivided family does not require the ascertainment of shares of each of the members though the releasor separates himself. The separation of one member, who renounced his share, does not necessitate a distribution of the joint family property in definite portions. His renunciation merely extinguishes his interest in the estate but does not in any way effect the status of the remaining members quoad the family property.
Issues: Whether the relinquishment of interest by a coparcener amounts to partition? Whether after-born sons can claim a share in the family property?
Ratio Decidendi: The relinquishment of an interest in immovable property is not a transfer of property as defined in the Transfer of Property Act as it is only an effacement or extinction of the interest of the releasor. It has only the effect of reducing the number of members that will be entitled to participate in the estate. If Section 20 is out of the way, the provision in Ex. A. 1 referred to above is ineffective so far as the plaintiffs are concerned, as a release in favour of persons not in existence confers no benefit in law on the after-begotten sons. Therefore, the plaintiffs do not stand to gain by that term and it cannot sustain their claim to a share in the suit properties.
Final Decision: Appeal dismissed and suit dismissed with costs throughout as against defendants 2 and 3 and 5.
( 1 ) THE decision of this appeal mainly turns on the interpretation of the document marked as Ex. A. 1 in the case and the consequences that flow from it.
( 2 ) THE facts which are not in dispute and which have a material bearing on this enquiry may be shortly narrated. One Katragadda Chinna Ramiah, who figures as the first defendant in this litigation, his son, Nageswara Rao and the latter s only son, Pedda Anjaneyulu constituted at the relevant time an undivided Hindu family governed by the Mitakshara school of Law. Negeswara Rao was an improvident person incurring debts indiscriminately and in respect of which his creditors were pressing him. To avoid involving himself in greater difficulties on his account, he executed a document religuishing his interest in the joint family properties in favour of his father and son. It is convenient to read here the operative portion of the document. It recites :"i have for the benefit of you the members of our joint family and the male issue that may be born to me hereafter, relinquished the entire right, title and interest possessed by me in the moveable and immovable properties as well as assets and liabilities of our joint family, and executed and delivered this release deed in your favour creating in your favour all absolute right, title, possession and interest. I have hereby reliquished the right, title and interest possessed by me in the entire movable and immovable properties as well as the assets and liabilities properties as well as the assets and liabilities of our family. The male issue that may be born to us hereafter shall, according to Hindu law, enjoy the same with all absolute rights of gift, transfer, exchange and sale, bearing all the liabilities in respect thereof. "
( 3 ) IT is thus seen that Nageswara Rao is clear and unequivocal terms had renounced his interest in the joint family properties in favour of the persons mentioned there.
( 4 ) SOMETIME later, a creditor of Nageswara Rao laid an action on the foot of promissory note in the Court of the District Munsif, Tenali, adding his son and father as defendants 2 and 3 respectively. In that suit defendants 2 and 3 were ultimately exonerated but a decree was passed against Nageswara Rao personally. In execution of that decree the decree-holder proceeded against the family properties. The father and son of Nageswara Rao i. e. , Chinna Ramaiah and Pedda Anjaneyulu, intervened with claims on the objection that that these properties were not liable to be proceeded against. The executing court, while releasing the halfshare of Chinna Ramaiah, sustained the attachment as regards the half share of Pedda Anjaneyuly being of opinion that the prepartition debts of the father could be recovered from the properties that fell to the share of the son. Family, when the matter reached the High Court of Madras, the appeal of Pedda Anjaneyulu was accepted. It was ruled by the Full Bench of that Court to which the matter was referred on account of the conflict of the judicial opinion, that the decree obtained against the father alone could not be enforced against the properties allotted to the share of his son at the family partition. It is worthy of note that the High Court as also the Court below proceeded on the assumption that the relinquishment had resulted in the partition of the joint family properties. The importance of this assumption will appear presently. Mention of this litigation has to be made though it has no immediate relevancy in this enquiry, as it impinges on one of the arguments advanced here.
( 5 ) TO resume the narrative, Pedda Anjaneyuly died on 12-10-1949 and this made Chinna Ramaiah the sole surviving co-parcener. A few years later, a creditor of the family obtained decrees against Chinna Ramaiah and in execution thereof attached item 4 of the plaint A schedule and a portion of the B schedule properties. At that juncture, an after-born son of Nageswara Rao filed a petition under Order 21,
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