A.S. No. 59 of 1986. Case: Vijayakumaran Vs Sankarankutty Ezhuthassan. High Court of Kerala (India)
| Case Number | A.S. No. 59 of 1986 |
| Counsel | For Appellant: P.B. Krishnan, K. Jayakumar and S.V. Balakrishna Iyer, Advs. and For Respondents: P.N.K. Achan, Sr. Adv. and T. Sethumadhavan, Vijayalakshmi M.U. and Sreekesh, Advs. |
| Judges | S. Sankarasubban and Kum. A. Lekshmikutty, JJ. |
| Issue | Joint Hindu Family System (Abolition) Act, 1976 - Sections 4, 5, 5(2), 6; Code of Civil Procedure, 1908 - Section 60 |
| Citation | ILR 2001 (2) Ker 192, 2001 (2) KLT 335 |
| Judgement Date | March 26, 2001 |
| Court | High Court of Kerala (India) |
Judgment:
S. Sankarasubban, J.
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This appeal has been referred to a Division Bench by a learned Single Jugde. The question referred to is with regard to the interpretation of S. 5(2) of Joint Hindu Family System (abolition)Act(hereinafter refereed to as `the Act'). Learned counsel for the appellants relied on a decision in Bhagyam Ammal v. Mayilswamy Kounder 1990 (2) KLT 537, in support of the contention that S.5(2)of the Act only saves the pious obligations and the same cannot mean that even after the commencement of the act, a decree obtained against a father alone would be enforceable against the interest of the son in the joint family property as the joint family attained a status of division by virtue of S.4 of the Act. Manohgaran, J., before whom the matter was argued, held as follows:"In my view the question is of importance and the matter requires consideration by a Division Bench". The facts of the case are as follows:
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The suit was field for partition of the plaintiffs' 4/5 share over the paint schedule property. First defendant is the father of the plaintiffs. The paint schedule properties were obtained by the first defendant under Ext. A2 partition deed. The first defendant created two montages., Exts. X1 and X2 with regard to the paint schedule property in favour of the second defendant. Exts. X1 and X2 are dated 30.1.1975 and 12.12.1975 respectively. Since the amount due under Exts. X1 and X2 were not obtained, a suit was filed by the second defendant against the first defendant on the basis of Exts. X1 and X2, as O.S.No.37 of 1981 on the filed of the Subordinate Judge's Court, Palakkad. Ext.B1 is the decree in the suit. The first defendant alone was made party. In execution of the decree, the properties were brought to sale and purchased by the second defendant. According to the plaintiffs, they came to know it only subsequently and immediately, the suit was filed. The case of the plaintiffs is that the first defendant had no right to mortgage the plaint schedule propitiates for his own debts. The second defendant has no manner of right to bring the property for sale. The court sale conducted is not binding on the plaintiffs' right over the property. The mortgage deed executed by the first defendant is not binding on the plaintiff's right over the property. The second defendant is not entitled to get any relief on the basis of the mortgage deed. The plaintiffs are entitled to get 4/5 share. Even though the first defendant filed a written statement, it is not relevant.
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The second defendant field a written statement contending that the suit is not maintainable. The plaint property belonged to the first defendant and the plaintiffs have no manner of right over it. The properties were acquired by the first defendant himself. As per the proceedings in e.p. 55 of 1982 in O.S. NBo. 37 of 1981, the properties belonged to the second defendant alone. The first defendant alone had right over the property. As per the court, sale, the second defendant has obtained right over it. Even if it is found that the properties are joint family properties, the properties are liable for the debts incurred by the first defendant for his wife and children and for the family...
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