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DATED: 24/07/2002
CORAM
Vs.
1. Sitarama Gounder
S/o Krishnaswamy Gounder,
1st Respondent in
both A.Ss.
2. Radhakrishnan
S/o Sitarama Gounder
3. Shantha Ammal
Mistress of Sitarama Gounder,
... 3rd Respondent in
A.S.No.567/92 and
:COMMON JUDGMENT
K. SAMPATH, J.
The above appeals arise out of a common judgment in four suits
tried jointly by the learned Additional Subordinate Judge, Cuddalore.
12. Before dealing with the main question, let us now refer
to certain facts, over which there can be no controversy.
Same is the case with regard to self acquisition of the father. As regards
the acquisition of his sons, the presumption is that they are also family
properties and it is for the sons to establish that the acquisition by onerous
title was realised not only with the income personal to his sons, but also
that they were never merged with the family patrimony. Justice DAVID
ANNOUSSAMY reiterates that the exclusive right of a Hindu father in
Pondicherry is recognised,
"in respect of all properties whether ancestral or self acquired and the
denial to the son of any right by birth or any right to ask for partition
during the life time of his father. Till his death the father is the sole
owner of all the properties with full right of disposal for valuable
consideration."
18. The next point is as to what the son can do after the
life time of the father in respect of gratuitous transfers. That is where the
principle of legitim steps in. What is legitim?
"preservation of the properties in the family was at the root of the real
estate regime and successoral law in India and that, therefore, legitim was a
necessary part of that law. He observed that there was no obstacle in
applying integrally the provisions of Code Civil in the matter of legitim to
Hindus.
Thus, it is seen that the Courts in Pondicherry have consistently
allowed to the children the right to attack the acts of liberalities of their
parents when such acts had the effect of depriving them substantially of their
legitimate right to succeed and that in the course of time the very principle
of legitim as understood in French law has come to be accepted.
The sons have a right of legitim in the property of their father and
the daughters have the same right in the property of their mother.
The French jurists did not make any distinction between ancestral
properties and self acquired properties, except Laude who stated that the
father could not dispose of the immovables left by the ancestors at his
pleasure and that the children had the right to attack the excessive
liberalities by invoking their right of legitim, that in respect of self
acquired properties the father had the right of disposal subject to the right
of children to attack it as in the Roman law ( querela inofficiosi testamenti)
in case they were deprived by the father without valid reason. Even this
author, only made a difference only in respect of the remedy but the right of
disposal was limited in both kinds of properties. The right of legitim is
allowed on the totality of the estate. This is in harmony with the full
powers conferred on the father on both kinds of properties.
21. Dealing with the scope of the legitim under the heading
"The Beneficiaries" the learned Judge has observed as follows:
"The French jurists did not make any distinction between ancestral properties
and self-acquired properties, except Laude who stated that the father could
not dispose of the immovables left by the ancestors at his pleasure and that
the children had the right to attack the excessive liberalities by invoking
their right of legitim, that in respect of self acquired properties the father
had the right of disposal subject to the right of children to attack it as in
the Roman law ( querela inofficiosi testamenti) in case they were deprived by
the father without valid reason. Even this author only made a difference in
respect of the remedy but the right of disposal was limited in both classes of
properties."
"As regards the legal mechanism for the enforcement of the right of legitim
the French Courts have been applying without hesitation from the beginning the
rules embodied in the Code Civil in their entirety. Though the matter is
dealt with in a few articles of the Code Civil an elaborate case law has been
built up in the course of time around those articles and the mechanism for the
enfor cement of the legitim is rather complicated. ....
If a forced heir comes to the conclusion that what is left of the
estate after the donations and the bequests is not sufficient to meet his
legitim he has a right of action for having the liberalities effected by the
propositus reduced to his disposable quota in order to recover what is
necessary to complete the legitim. For that purpose he has to prove that the
legitim has been invaded and show the extent of such invasion. For
determining those points it is first necessary to assess the patrimony of the
propositus on the date of his death as if he has not made any gifts. This
entails the following operations: (i) determination of properties actually
vesting on the propositus on the date of his death; (ii) determination of
properties donated by the propositus; (iii) valuation and addition of the
properties determined as above; (iv) deduction of the liabilities of the
propositus.
While the three operations (i), (iii) and (iv) do not offer any
particular difficulty the operation (ii) is fraught with some complications.
Apart from donations recorded in the documents there may be donations from
hand to hand, disguised donations or indirect donations like renunciation of a
right, of a bequest or of a succession. For the purpose of determination of
the legitim any act which has the effect of depriving the propositus from a
thing or a right with the intention of gratifying another with the same is to
be considered as a donation. The burden cast on the forced heir is not of
easy performance. However, the presumption embodied in Article 918 of the
Code Civil comes to his rescue to some extent. According to that article, all
sale of properties to a person entitled to succeed in the direct line are to
be considered as donations and, therefore, debitable to the disposable quota
when the consideration for the sale is in the form of an annual payment by the
purchaser during his life time or an annual payment during the life time of
the donee or when the vendor has reserved himself the right of usufruct. In
general, unless an alienation is proved to be a donation in one form or
another, it remains intact and the concerned item shall not be brought in the
hotchpot for the purpose of calculation of the legitim. But when it is a
donation, it is susceptible of being reduced to satisfy the legitim, by
exception to the general rule of irrevocability of donations. As regards the
valuation of donated properties the Code Civil provided that they should be
valued according to the state at the time of donation and their value on the
date of the death of the propositus. This was modified by the Act of 7
February 1938 which provides that the properties shall be valued as per the
state and value at the time of donation. However, this modification has not
been made applicable to Pondicherry. Any improvement or damage caused by the
donee will not be taken into account. The property is deemed not to have left
the patrimony of the propositus. However, if the donation is in respect of a
future thing the date for the purpose of valuation is not the date of donation
but that of death.
When the four operations referred to above are completed the exact
composition of the estate of the propositus is known. The amount of the
disposable quota and the legitim due to each heir can easily be worked out and
if it is found that the legitim of the plaintiff has been invaded, the
liberalities have to be reduced to the extent necessary.
Mode of reduction
Effect of reduction
When a liberality is found to be in excess of the disposable quota it
does not become null and void. The action instituted by the forced heir has
only the effect of cancelling the liberality to the extent necessary to
satisfy the due of that heir. In case of a bequest the heir would get out of
the bequest what is needed to make good the legitim, and the bequest would be
executed for the balance, if any. Regarding the donation the right of action
available to the forced heir does not give him a share in each of the movables
and immovables donated necessitating a partition. The donations will only get
cancelled in the order indicated above and to the extent necessary to meet the
legitim irrespective of the nature of properties (movables or immovables)
donated. Even disguised donations are not null and void. They are only
subject to reduction as the other donations.
The reduction of liberalities operates in principle even inrespect of
indirect donations. The beneficiary of an undue liberality would not be free
from his obligation by offering a monetary compensation. However, this is
subject to some exceptions which are becoming more and more important. In
spite of the reduction the donee keeps for himself the past mesne profits. If
the suit for reduction is filed within the year of death he has to give back
mesne profits only from the date of death. If the suit is filed later mesne
profits are due from the date of the suit only.
The reduction has also the effect of destroying the rights that third
parties might have acquired on the immovables donated. However, if the donee
is no longer in possession of the immovables he shall pay the value thereof to
the forced heir and only in case of impossibility of recovering that amount
the third parties holding properties shall become liable.
Procedure
Any forced heir who as per his calculation comes to the conclusion
that his legitim has been invaded has a right to ask for reduction of
excessive liberalities. Such a claim produces effect only in respect of the
heirs who make it and not in respect of others who may have the same right but
who have failed to claim it. In fact, all the heirs are not bound to enforce
their rights. They may renounce it. It is also possible that in respect of
an estate some of the heirs renounce, some others not. The right is a
divisible one.
The right of action becomes available only after the death of the
propositus. The limitation for claiming reduction is thirty years from that
time, the period of thirty years being the normal time limit in French law for
all actions. In respect of third parties who acquired rights from the donee
of a legatee they can plead, by way of defence, acquisitive prescription by
ten to twenty years embodied in article 2265 of the Code Civil if other
conditions, namely, good faith and regular title of transfer are present.
Their prescriptive possession starts from the date of the death of the donor
or the date of the acquisition by third parties, whichever is later."
"In the result, there will be a decree in favour of the plaintiffs directing
that defendant 1 may be at liberty to renew the deposits now lying in the
Vellore and Karur Banks and that if at any time she desired to withdraw the
deposits or re-invest them in other securities, public or private, she shall
be entitled to do so but only on her application to the Court and after notice
to the plaintiffs of her intention to do so. The object of this notice would
be to enable the reversioners to take such steps as they may be advised to
take, with a view to prevent defendant 1 from dealing with the money in the
manner proposed by her. In other words, such questions as may be raised in
that behalf shall not be liable to be investigated or determined in the course
of the execution of this decree but only in a separate suit. In view of the
fact that the plaintiffs have made exaggerated allegations and their success
is partial, I would direct that each party shall bear his or her own costs of
the suit."
The plaintiffs filed appeal objecting to the decree on the ground that, on the
findings arrived at, the lower Court should have granted an injunction in the
terms of the plaint. The first defendant filed a Memorandum of cross
objections urging that on the findings arrived at by the lower Court, no case
was made out for restraining her from dealing with the property. The Bench
observed as follows:
"It is no doubt true that the nature of the estate taken by a mother
inheriting the property of her son in the same as that taken by a widow
inheriting the property of her husband, that she is not a trustee for the
reversioners and that whether the property is moveable or immovable, she is
entitled to have possession thereof and enjoy the same in accordance with the
powers which the Hindu law confers on her. But her powers of disposal over
the corpus of the estate are limited. She can only deal with and dispose of
the property for purposes which are sanctioned by Hindu law; but where she
acts in excess of her powers, there can be no doubt that she can always be
restrained. .... Where the properties are moveable or cash and her conduct
is such as to raise a reasonable apprehension that if she is allowed to have
uncontrolled possession of it, she would not administer it in accordance with
the powers which the law confers upon her. It is open to the Court to give
such appropriate relief to the reversioner as would secure the property from
being spent away for purposes other than those sanctioned by Hindu law. ....
That the Court's power of interference is not limited to cases where a widow
has been actually guilty of any specific act of waste or mismanagement, but
extends to cases where reasonable apprehension of waste is made out, is well
established. .... Whether the relief which the reversioner can get is not
limited only to cases of actual mismanagement,but conduct justifying danger to
the reversion would be enough, such as the intended investment in an unsafe
security."
"In giving the appropriate relief the principle which has to be kept in view
is that while the mother or widow should not be allowed to deal with the
property in excess of her powers under Hindu law, she must at the same time be
protected from unnecessary harassment at the hands of the reversioners."
The Bench was of the opinion that the reversioners were such that they would
not hesitate to harass the widow even without any justifiable cause.
The next reversioner for the time being to the estate of a deceased
Hindu, expectant upon the widow's death, is not entitled to a declaration that
he is the next reversioner, although in that capacity he has the right to sue
on behalf of the reversioners for the protection of the estate as stated in
Sections 204 and 205.
last full owner, could institute a suit against the alienee for a declaration
that the alienation was without legal necessity and was void beyond her life
time.
32. It has been held by the Supreme Court in SUNIL KUMAR AND
ANOTHER VS. RAM PARKASH AND OTHERS (1988(2) SCC 77) fairly brought to our
notice by Mr. Kannan, learned Counsel for the appellant, that,
"In a joint Hindu Mitakshara family, a son acquires by birth an interest equal
to that of the father in ancestral property. The father by reason of his
paternal relation and his position as the head of the family is its Manager
and he is entitled to alienate joint family property so as to bind the
interests of both adult and minor coparceners in the property, provided that
the alienation is made for legal necessity or for the benefit of the estate or
for meeting an antecedent debt. The power of the Manager of a joint Hindu
family to alienate a joint Hindu family property is analogous to that of a
Manager for an infant heir.
However, in a suit for permanent injunction under Section 38 of the
Specific Relief Act by a coparcener against the father or Manager of the joint
Hindu family property, grant of an injunction is prohibited under Section
41(h) as the coparcener has got equally efficacious remedy to get the sale set
aside and recover possession of the property. Moreover, the grant of such a
relief will have the effect of preventing the father permanently from selling
or transferring the suit property belonging to the joint Hindu Undivided
Family even if there is a genuine legal necessity for such transfer. Further,
where the karta entered into the agreement of sale stating that he was the
owner of the suit property, the question whether the suit property is the self
acquired property of the father or it is the ancestral property has to be
decided before granting any relief. The suit being one for permanent
injunction, this question cannot be gone into and decided."
because the right is only to challenge the alienation made and there is no
right recognised inlaw to maintain a suit to prevent the proposed sale. The
principle that an injunction can be granted for prevent ing waste by a
manager of karta obviously would not be applicable to such a suit because the
proposed alienation for an alleged need of the benefit of the estate cannot be
said to be an act of waste by any stretch of reasoning. We are, therefore, of
the considered view that a coparcener has no right to maintain a suit for
permanent injunction restraining the manager or the karta from alienating the
coparcenary property and his right is only to challenge the same and to
recover the property after it has come into being."
(P.S.M.,J.) (K.S.,J.)
24-7-2002
Index: Yes
Internet: Yes
IGP
To
1. The Additional Subordinate Judge,
Cuddalore (with records).
P. SHANMUGAM, J. &
K. SAMPATH, J.
Common Judgment in
A.S.Nos.567/92 and
373/2002 and
Tr.A.S.Nos.217 and
218/2002