TMI Blog1962 (6) TMI 59X X X X Extracts X X X X X X X X Extracts X X X X ..... ary 1958. The plaintiff, who is the eldest son of Mithamal, has filed the present suit on 15-6-1959 for recovery of the amount due under the sarkat note. The plaintiff has claimed the principal amount under the sarkat note together with interest. 3. Several defences were raised. The defendant pleaded that he was not paid any amount at all. Alternatively, it was pleaded that Mithamal never advanced the amount as a karta of the joint Hindu family. It was his personal transaction and the suit by the plaintiff alone is not valid. Mithamal left behind, among other heirs, two married daughters. Without Joining them as parties, the suit was not a properly representative suit and must fail. Yet another defence was that the sarkat note was an acknowledgment within the meaning of Article 1 of Schedule I of the Stamp Act. As the subsequent acknowledgment notes do not bear any stamp, they are inadmissible in evidence for any purpose. In that event the suit on the original cause of action would be barred by limitation. It was also pointed out that the advance was in the nature of money lending transaction and the plaintiff or his father not having had any licence under the Money lenders Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these findings of fact, only two questions of law survive for consideration. The first is whether the sarkat notes of 1953 and 1956 amount to acknowledgments within the meaning of Article 1 of Schedule I of the Stamp Act, or they are otherwise acknowledgments only for the purpose of Section 19 of the Limitation Act, The second point for consideration is whether the present suit by the plaintiff without impleading his sisters, either as plaintiffs or defendants, is legally maintainable, 6. So far as the first point is concerned, the original sarkat note of 1950 has already been admitted by the Courts below in evidence. As pointed out by the first Appellate Court, no particular objection was raised to it and the suit did not seem to be based upon that document, Under the circumstances, the sarkat note having been admitted in evidence, it was not open to the defendant to challenge its admissibility at a later stage. However, the two subsequent sarkat notes of 1953 and 1956 are being used by the plaintiff for the purpose of bringing the suit within limitation, as well as basing the claim on them. It is, therefore, necessary to examine the nature of these two documents. 7. It is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time when the acknowledgment was so signed. If the writing did not bear any date, it is open to prove by evidence that it was executed on a particular date, 9. As against this, acknowledgment falling under Article 1 of Schedule I of the Stamp Act requires that it should be in writing relating to a debt exceeding ₹ 20/-. It should be a writing written or signed by, or on behalf of, a debtor in order to supply evidence of such debt in any book (other than a banker's pass book) or on a separate piece of paper when such book or paper is left in the creditor's possession. There is a proviso which lays down that such acknowledgment does not contain any promise to pay the debt or any stipulation to pay interest or to deliver any goods or other property. The distinguishing feature between the two acknowledgments appears to be that the acknowledgment under the Limitation Act merely, acknowledges the liability in respect of any property or right. The acknowledgment falling under the Stamp Act, however, requires that it should supply evidence of such debt in any book or a separate piece of paper and that such book or piece of paper is to be left in the possession of the cred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itating the action, acknowledgments were executed from time to time, so that a fresh period of limitation could be computed and immediate filing of a suit may not become necessary. The dominant intention of the executant, therefore, was not to supply evidence of debt, but was merely to acknowledge unconditional liability to pay. The drawing of proper inference from proved facts is a mixed question of law and fact. Both the Courts below have fallen into an error in thinking that any acknowledgment immediately fails under Article 1 of Schedule I of the Stamp Act. The distinction between the two acknowledgments is clear, and how to distinguish one from the other is also laid down by clear authorities in that behalf. I am, therefore, satisfied on examination of the two documents of 1953 and 1956 that they do not fall under Article 1 of Schedule I of the Stamp Act. Both the documents are, therefore, admissible in evidence for proving the acknowledgment of the debt. They also provide a fresh cause of action and the suit based on them is clearly within time. 11. This brings me to the consideration of the last defence which is also more or less a technical defence. Undoubtedly, there wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act. The normal devolution by survivorship, which was a distinguishing feature of the Mitakshara coparcenary, is sought to be maintained even by the Hindu Succession Act. However, there is a proviso added to this section which carves out a case when the family consists of certain types of members. The proviso to Section 6 and Explanation 1 are the main provisions which fall for consideration in this appeal. For the purpose of ready reference, I would reproduce the provisions of Section 6 including Explanation 1. 6. When a male Hindu after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act: Provided that, if the deceased has left him surviving a female relative specified in Class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the deceased does not devolve upon the remaining members of the family by survivorship. The minimum effect of such a devolution obviously is that the representation of the entire property by the karta of the family ceases. He could not effectively represent the entire Interest Including the interest devolved upon the females or male heirs claiming through females, and to that extent their presence either as plaintiffs or defendants in a suit relating to the estate of the deceased is absolutely necessary. Mr. Banade also relies upon the judgments of the Calcutta and the Kerala High Courts in this behalf, I will presently examine them and consider their effect. 13. As against this, Mr. Phadke, learned Counsel appearing for the appellant, argues that the anxiety of the Legislature as may be seen from the opening part of Section 6 of the Hindu Succession Act, is to maintain the Mitakshara coparcenary and the devolution of property by survivorship among the members of the coparcenary which is a special and distinguishing feature of the Mitakshara joint Hindu family. Since Section 4 of that Act says that the customary Hindu Law shall be deemed to have been overridden to the extent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat case, so far as the representation to the outsiders like the defendant is concerned, the plaintiff should be held to be the proper representative of the family and as such entitled to file the suit alone in his own name. 14. Before I refer to the judgments of the Calcutta and the Kerala High Courts on which Mr. Ranade particularly relies, I may point out that a large number of cases relating to the provisions of the Hindu Women's Rights to Property Act, 1937 were cited at the Bar. The main purpose in citing those judgments was to suggest an approach to the interpretation of the Hindu Succession Act. Under the provisions of the Hindu Women's Rights to Property Act and particularly Sub-sections (2) and (3) of Section 3, additional rights were conferred upon widows in a joint Hindu family. Before that Act, the only right of a Hindu widow was the right of maintenance and, to that extent only, it was a right in property. As a mother, the widow could get a share equal to that of the sons when the sons were out to partition. However, by Act No. 18 of 1937 as amended by Act No. 11 of 1938 a special position was given to a widow in the family so far as the joint family proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntrary, there is continuance of the joint Hindu family with the additional feature that a widow has been given certain interest in the property. That interest of the widow is the same interest which her husband has had. Until, therefore, she effects a partition, or until otherwise the joint family comes to an end by disruption, that interest is a fluctuating interest which is liable to be increased or decreased according to the incidence of deaths and births in the family. The unity of the estate and community of possession still continue and the alienation by a karta for legal necessity will bind the interest of the widow in the family property. This principle has been reiterated by this Court again in the later judgments in Shivappa v. Yellawa,: AIR1954Bom47 and Mahadu v. Gajarabai,: AIR1954Bom442 . This approach is endorsed by the Supreme Court in Lakhmi Perumallu v. Krishnavenamma, [1965]1SCR26 . The Supreme Court has very briefly summarised the nature of interest of the widow and it may be noted in their words. In para. 22 this is what their Lordships say: As we have already pointed out the interest devolving upon the widow need not necessarily be either by survivorship or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r having left behind him a widow, sons and daughters, the proviso and the Explanations to Section 6 of the Hindu Succession Act were attracted and the result was that the share of the deceased in the coparcenary property must be deemed to have been partitioned out immediately before his death and to have devolved on his heirs. That share, being no more part of the coparcenary property is not within the competence of the Karta of the joint family to represent in the suit. On the facts of that case, it appeared that the coparcener had died pending the suit. Hence an ingenious argument was pressed in service on behalf of the plaintiff that the notional partition contemplated by Explanation 1 to Section 6 is an event which has taken place pending the suit. The partition and the devolution of interest under that partition is effected by the provisions of Section 52 of the Transfer of Property Act. This argument was negatived by the Kerala High Court by pointing out that the notional partition is solely for the purpose of ascertaining the extent of such interest as would be the subject matter of devolution when the deceased Hindu died undivided from his coparceners. That notional partiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st that order that a writ petition was filed in the High Court. The discussion by the learned Single Judge of the Calcutta High Court regarding the provisions of Section 6 of the Hindu Succession Act is also very brief. He merely summarises the effect of the provisions and draws his final conclusion in the following words: 4. Such then is the effect, by the conjoint Operation of the proviso and Explanation 1 to Section 6. What is seen, therefore, is a notional partition coupled with devolution of such notionally partitioned property upon Surendra kumar Ruia's mother. What remains then of Narayan Prasad Ruia as the Karta ? A Karta of a joint family property is quite an understandable concept. But a karta for a divided property, of property partitioned, notionally though, appears to be incomprehensible. So, the old Karta theory cannot help matters forward for the petitioner before me, and Narayan Prasad Ruia as karta cannot represent his deceased son's mother and necessarily his wife upon whom devolves the share of the properly after partition. The very nexus of the joint family property is gone. A conclusion as this is to be regretted, but cannot perhaps be helped. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill operate as before in respect of such a coparcenary. If, however, the deceased coparcener has female relatives or male relatives claiming through female relatives mentioned in Class I to the Schedule, then the proviso becomes operative and not the opening portion of the section. Both the parts, therefore, simultaneously operate and are applicable either to one set of circumstances or the other. It is not possible for me to say that the proviso is in the nature of an exception to the earlier part of the section. On the contrary, the two provisions read together cover every type of case. As I pointed out earlier, there can be only two types of cases, one where the coparcener leaves behind female relatives or male relatives claiming through female relatives mentioned in Class I to the Schedule, and the other where no such relatives survive the deceased. Both these types of cases are equally normal and quite possible in almost all Mitakshara coparcenalies . Both parts of Section 6, namely, the opening section and the proviso are substantive provisions enacted by the Hindu Succession Act for the purpose of modifying the customary Hindu Law and creating new heirs and heir ships to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al or a notional partition immediately prior to his death has been conceived or. That share, which would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not, now represents the interest which shall devolve by succession under this Act it was argued before me by Mr. Banade by relying upon the judgments quoted above that the effect of Explanation is virtually to bring about a partition in the family. The Calcutta High Court points out that the very nexus of the joint family property is gone. If this is the effect of the succession under the new Act, whether testamentary or intestate, what else could we say than that there was a partition ? 21. I will at once hasten to point out that it is not necessary for the purpose of disposing of this litigation to decide whether a full partition of the family property takes place or it is a piecemeal partition with respect to the interest of the deceased and what is the effect in either case on the entire family property or the interest and rights and liabilities inter se between the other coparceners in the family. For instanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d beyond, what I find is that the interest of the deceased has to devolve by succession under the provisions of the Hindu Succession Act, and it is not to devolve by survivorship as contemplated by the customary Hindu Law. The Hindu Succession Act introduces a new class of heirs, and the devolution of interest on them by succession is a reality which must be accepted and faced. In a Hindu Coparcenary family, on the death of one of the coparceners, what we find is that the interest of the deceased has been ascertained for the purpose of separate succession under the Act and that succession introduces a new class of heirs who are not or may not be members of the Joint Hindu family. I am aware that a joint Hindu family is a larger body and the daughters are members of the joint family until they are married though they are not coparceners. Women introduced in the family by marriage are also members of the joint family though they could not be coparceners. Hence I say that the relatives, who are entitled to succeed under the Hindu Succession Act, may or may not be members of the joint Hindu family. As it happens, in the present case, the two daughters of the deceased Mithamal are marri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... during the deceased's lifetime a common interest and a common possession. This being the real nature of the coparcenary and its ownership of property, it is the introduction of an owner of property with a vested right other than the coparcener which vitiates this concept. Whether the karta still continues to represent the interest of the other coparceners or not may be open to debate but it fa difficult to assume that the karta will represent the right, tide and interest of a female relative or a male relative claiming through the female relative specified in Class 1 of the Schedule to the Hindu Succession Act. Such an owner of interest could obviously be a tenant in common with the other co-owners of the property. If there are more such heirs than one succeeding to the deceased how they take among themselves is provided by Section 19 of the Hindu Succession Act. They take in the first instance per capita and not per stirpes save as otherwise expressly provided in this Act. They also take as tenants-in-common and not as joint tenants. No survivorship is permitted even to the limited extent of joint tenancy of the English law among such heirs. The Hindu Succession Act has n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcener and to none else. The reference to a male member was advisedly made not to make her a full-fledged coparcener but to give her the same right of partition which the coparcener had. While considering the nature of right of claiming partition of a male member, one has again to go back to the customary Hindu Law. Contrary to this, the present enactment, namely, the Hindu Succession Act, includes some provisions which are clearly inconsistent with the customary Hindu Law. As I have pointed out above a new class of heirs is created, and in cases falling under the proviso to Section 6, survivorship has been statutorily banned and. testamentary and intestate succession has been introduced. The manner in which the case law under the Hindu Women's Rights to Property Act, 1937 was handled and approached may, therefore, be of very limited assistance in the construction of the provision of the Hindu Succession Act. 27. As a result of the discussion above, I would hold that the two married sisters of the plaintiff who were married long back before the institution of the suit had vested shares in the interest of their deceased father Mithamal in the joint Hindu family of which the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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