Case BriefsHigh Courts

Gujarat High Court: A.G. Uraizee, J., decided a matter with regard to permission to sell the undivided share of minor from the joint family property.

Present appeal under Section 47 of the Guardians and Wards Act (GNW Act for short) read with Section 96 of the Code of Civil Procedure, 1908, the appellant assailed the decision of Additional District Judge whereunder the application under Section 9 of the GNW Act for permission to sell the undivided share of minor was rejected.

Citing the decision of this Court in Sankhala (Mali) Kantaben v. Rabari Panchabai Chelabai, AIR 2020 Guj 205, Shivangi Vyas, Advocate for the appellant submitted under Section 12 of the GNW Act, no permission was required to sell the undivided share of the minor. Therefore, she urged that the impugned judgment may be set aside, and appellant shall be permitted to sell the undivided share of her minor son.

An affidavit was also filed wherein it was stated that the land was being sold to tide over the financial difficulties.

High Court observed that no permission was required to sell the undivided share of minor in the joint family property.

To the above, Court added that the interest of the minor son is to be taken care of, while his share of joint family property is being sold.

Bench while giving permission to sell the undivided share of her minor son in the joint family property, directed the appellant to intimate to the trial Court, the total sale consideration derived from the sale of joint family property and the amount falling to the share of her minor son shall be deposited in the trial court.

Further, the trial court, in turn, shall invest the same in FDR receipts in a nationalised bank for a period of five years or till the minor attains the age of majority, whichever is earlier, and the periodical interest accruing on the FDR receipts shall be disbursed in favour of the minor through his guardian i.e. the appellant. [Kantaben Jayendrabhai Savla v. Nil, R/First Appeal No. 1977 of 2021, decided on 17-08-2021]


Advocates before the Court:

Shivangi D Vyas for the appellant(s) 1,2,3

Case BriefsHigh Courts

Madras High Court: G. Jaya Chandran, J., expressed that the individual property can blend with the ancestral property or with the joint family property but not vice versa.

Factual Matrix

In the present matter, it has been stated that the parties engaged in the dispute were descendants of K.N.T Manickam Chettiar. During the lifetime of K.N. Thandavaraya Chettiar, he and his 6 sons entered into a partition deed and got the same registered. Ancestral Properties and the properties accrued through joint family members exertion were divided into 7 lots put under schedule “A” to “G”.

Further, it was added that Schedule “A” was left to parents Thandavaraya Chettiar and his wife Unnamalaiammal, and later after their death to be divided among the 6 sons after clearing the parent’s debts if any.

Manickam Chettiar was allotted properties under “F” schedule and later the said properties were divided into 8 lots under schedule “A” to “H”. Properties listed under ‘A’ schedule was allotted to K.N.T Manickam Chettiar and the ‘B’ Schedule properties were allotted to his son M. Sivasubramaniam. On the demise of K.N.T Manickam Chettiar, properties left by him were divided amongst his children, after which M. Sivasubramaniam was allotted properties listed under Schedule ‘A’.

Sivasubramaniam after getting married had a son named ‘Saravanan’ and a daughter ‘Dhanuja Murali’. Later Sivasubramaniam re-married and from his second marriage he had a son ‘Manikandan’ and two daughters Kavitha and Vidya.

Present Suit by Saravanan for Partition

Sivasubramanian, Mnaikandan, Dhanuja Murali, Kavitha Senthil  and Vidhya Venkataragavan are the defendants. Saravanan contended that ‘A’ and ‘B’ schedule properties are properties in the name first defendant are ancestral properties. ‘C’ Schedule property purchased in the name of First Defendant Sivasubramanian is from out of joint family income.

Trial Court had dismissed the suit holding that the suit properties were not joint family properties and against the said dismissal, the present appeal was filed.

Point for Consideration

Whether the suit properties are ancestral properties to devolve upon the plaintiff by survivorship or it is a self-acquired property acquired by the 1st defendant to dispose of it as self -acquired?

Analysis, Law and Decision

The three categories of properties stood in the name of Sivasubramanian and one property not included stands in the name of Saravanan, who is the plaintiff.

First Category Property: It is the one that devolved upon Sivasubramanian when his father and others divided the ancestral and joint family property. This property is shown under Schedule ‘A’.

Second Category Property: It is the one devolved upon Sivasubramanian under the petition deed between him and his siblings.

Third Category Property: It is the property purchased in the name of Sivasubramanian in the year 2004 upon which, he had constructed a house and the property purchased in the name of Saravanan and construction put upon it.

Property in the name of Sivasubramanian alone is the subject matter of the present suit. Plaintiff excluded the property which stood in his own name and wanted to retain it as his self-acquired individual property and had contended that, it does not form part of the joint family property. Sivasubramanian’s daughters contended that the ‘C’ schedule property in the suit was their father’s self-acquired property and the property in the name of Saravanan was the joint family property purchased in Saravanan’s name.

Controversy:

The controversy is in respect to the property purchased and improved in the name of Saravanan (plaintiff) and Sivasubramanian (1st defendant) – Whether it is the self-acquired property of the individual or joint family property?

If any person says property has been purchased in the name of family members from out of joint contribution of the family members, then, the person who asserts the fact, should prove it.

In the present matter, both plaintiff as well as the 1st defendant were able to show their independent source of income for purchasing the property in their respective names.

Bench opined that since the ‘C’ schedule property stood exclusively in the name of 1st defendant and he had shown his independent source of income for purchasing the said property and improving it, the plaintiff cannot have right or share in the said property.

Trial Court miserably failed to note the ancestral nature of the property and other properties getting blended with the ancestral property.

Further to elaborate on the point of devolution of Hindu Male Mitakshara Property, Bench referred to the Supreme Court decision in: M. Arumugam v. Ammaniammal, (2020) 5 CTC 680.

While concluding, High Court held that an ancestral property is always an ancestral property, unless it gets divided among the existing coparceners. Even then, on the birth of a son and after 2005 amendments also daughter the coparcenary opens to them. Hence, Trial Court erred in the way in which it dealt with ‘A’ and ‘B’ schedule properties.

Hence partly allowing the appeal, Court decided that ‘A’ and ‘B’ schedule property are declared as ancestral property and available for partition, defendant’s 1 to 5 are entitled to share schedule ‘A’ and ‘B’ property equally. As far as ‘C’ schedule property, the plaintiff failed to prove that the said property as purchased from out of the income derived from the ancestral property. [P. Saravanan v. M. Sivasubramanian, 2021 SCC OnLine Mad 927, decided on 04-03-2021]


Advocates before the Court:

For the appellants: R. Subramanian, Senior Counsel for Gupta and Ravi

For R1 to R5: V. Lakshminarayanan, for R. Jayaprakash.