In the said affidavit, it is also admitted that she
had received the insurance money following the death of
Hari Shankar Vidyarthi and the same was used for the
purchase of the suit property along with other funds which
she had generated on her own. The virtual admission by the
predecessor-in-interest of the appellant of the use of the
insurance money to acquire the suit property is significant.
Though the claim of absolute ownership of the suit property
had been made by Rama Vidyarthi in the aforesaid affidavit,
the said claim is belied by the true legal position with regard
to the claims/entitlement of the other legal heirs to the
insurance amount. Such amounts constitute the
entitlement of all the legal heirs of the deceased though the
same may have been received by Rama Vidyarthi as the
nominee of her husband. The above would seem to follow
from the view expressed by this Court in Smt. Sarbati Devi
& Anr. vs. Smt. Usha Devi1
which is extracted below.
(Paragraph 12)
“12. Moreover there is one other strong circumstance
in this case which dissuades us
from taking a view contrary to the decisions of
all other High Courts and accepting the view
expressed by the Delhi High Court in the two
recent judgments delivered in the year 1978
and in the year 1982. The Act has been in
force from the year 1938 and all along almost
all the High Courts in India have taken the
view that a mere nomination effected under
Section 39 does not deprive the heirs of their
rights in the amount payable under a life insurance
policy. Yet Parliament has not chosen
to make any amendment to the Act. In such a
situation unless there are strong and compelling
reasons to hold that all these decisions
are wholly erroneous, the Court should be
slow to take a different view. The reasons
given by the Delhi High Court are unconvincing.
We, therefore, hold that the judgments of
the Delhi High Court in Fauza Singh case and
in Uma Sehgal case do not lay down the law
correctly. They are, therefore, overruled. We
approve the views expressed by the other High
Courts on the meaning of Section 39 of the
Act and hold that a mere nomination made
under Section 39 of the Act does not have the
1 1984 (1) SCC 424
effect of conferring on the nominee any beneficial
interest in the amount payable under the
life insurance policy on the death of the assured.
The nomination only indicates the
hand which is authorised to receive the
amount, on the payment of which the insurer
gets a valid discharge of its liability under the
policy. The amount, however, can be claimed
by the heirs of the assured in accordance withthe law of succession governing them.”
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.3162-3163 OF 2010
SHREYA VIDYARTHI
VERSUS
ASHOK VIDYARTHI & ORS.
Citation; AIR 2016 SC139:2015 SCCONLINESC 1324:(2015) 16 SCC 46
Dated;DECEMBER 16, 2015.
1. The appellant before us is the 8th Defendant in Suit
No. 630 of 1978 which was instituted by the firstrespondent
herein as the plaintiff. The said suit filed for
permanent injunction and in the alternative for a decree of
partition and separation of shares by metes and bounds
was dismissed by the learned Trial Court. In appeal, the
High Court reversed the order of the Trial Court and decreed
the suit of the respondent-plaintiff with a further
declaration that he is entitled to 3/4th share in the suit
property, namely, House No. 7/89, Tilak Nagar, Kanpur
whereas the appellant (defendant No. 8 in the suit) is
entitled to the remaining 1/4th share in the said property.
Aggrieved, these appeals have been filed.
2. The relevant facts which will have to be noticed may be
enumerated hereinunder.
In the year 1937 one Hari Shankar Vidyarthi married
Savitri Vidyarthi, the mother of the respondent-plaintiff.
Subsequently, in the year 1942, Hari Shankar Vidyarthi
was married for the second time to one Rama Vidyarthi.
Out of the aforesaid second wedlock, two daughters,
namely, Srilekha Vidyarthi and Madhulekha Vidyarthi
(defendants 1 and 2 in Suit No. 630 of 1978) were born.
The appellant-eighth defendant Shreya Vidyarthi is the
adopted daughter of Srilekha Vidyarthi (since deceased) and
also the legatee/ beneficiary of a Will left by Madhulekha
Vidyarthi. Page 3
3
3. The dispute in the present case revolves around the
question whether the suit property, as described above, was
purchased by sale deed dated 27.9.1961 by Rama Vidyarthi
from the joint family funds or out of her own personal
funds. The suit property had been involved in several
previous litigations between the parties, details of which
may now require a close look.
4. In the year 1968 Suit No. 147/1968 was instituted by
Savitri Vidyarthi (mother of the respondent-plaintiff)
contending that the suit property being purchased from the
joint family funds a decree should be passed against the
daughters of Rama Vidyarthi from interfering with her
possession. This suit was dismissed under the provisions of
Order VII Rule 11 CPC on account of failure to pay the
requisite court fee. In the said suit the respondent-plaintiff
had filed an affidavit dated 24.2.1968 stating that he had
willfully relinquished all his rights and interests, if any, in
the suit property. The strong reliance placed on the said
affidavit on behalf of the appellant in the course of thePage 4
4
arguments advanced on her behalf needs to be dispelled by
the fact that an actual reading of the said affidavit discloses
that such renunciation was only in respect of the share of
Rama Devi in the suit property and not on the entirety
thereof. Consistent with the above position is the suit filed
by the respondent-plaintiff i.e. Suit No. 21/70/1976 seeking
partition of the joint family properties. The said suit was
again dismissed under the provisions of Order VII Rule 11
CPC for failure to pay the requisite court fee. It also
appears that Rama Vidyarthi the predecessor-in-interest of
the present appellant had filed Suit No. 37/1969 under
Section 6 of the Specific Relief Act for recovery of possession
of two rooms of the suit property which, according to her,
had been forcibly occupied by the present respondentplaintiff.
During the pendency of the aforesaid suit i.e.
37/1969 Rama Vidyarthi had passed away. The aforesaid
suit was decreed in favour of the legal heirs of the plaintiffRama
Vidyarthi namely, Srilekha and Madhulekha
Vidyarthi on 4.2.1976. Page 5
5
5. It is in the aforesaid fact situation that the suit out of
which the present appeals have arisen i.e. Suit No. 630 of
1978 was filed by the present respondent-plaintiff
impleading Srilekha Vidyarthi (mother of the appellant) and
Madhulekha Vidyarthi (testator of the Will in favour of the
appellant) as defendants 1 and 2 and seeking the reliefs
earlier noticed.
6. The specific case pleaded by the plaintiff in the suit
was that the plaintiff’s father, Hari Shankar Vidyarthi, died
on 14.3.1955 leaving behind his two widows i.e. Savitri
Vidyarthi (first wife) and Rama Vidyarthi (second wife).
According to the plaintiff, the second wife i.e. Rama
Vidyarthi had managed the day to day affairs of the entire
family which was living jointly. The plaintiff had further
pleaded that Rama Vidyarthi was the nominee of an
insurance policy taken out by Hari Shankar Vidyarthi
during his life time and that she was also receiving a
monthly maintenance of a sum of Rs. 500/- on behalf of the
family from the “Pratap Press Trust, Kanpur” of which Hari
Shankar Vidyarthi was the managing trustee. In the suit
filed, it was further pleaded that Rama Vidyarthi received a
sum of Rs. 33,000/- out of the insurance policy and also a
sum of Rs. 15,000/- from Pratap Press Trust, Kanpur as
advance maintenance allowance. It was claimed that the
said amounts were utilized to purchase the suit property on
27.9.1961. It was, therefore, contended that the suit
property is joint family property having been purchased out
of joint family funds. The plaintiff had further stated that
all members of the family including the first wife, the first
respondent and his two step sisters i.e. Srilekha and
Madhulekha Vidyarthi had lived together in the suit
property. As the relationship between the parties had
deteriorated/changed subsequently and the plaintiffrespondent
and his mother (Savitri Vidyarthi) were not
permitted to enter the suit property and as a suit for
eviction was filed against the first respondent (37 of 1969)
by Rama Vidyarthi the instant suit for permanent injunction
and partition was instituted by the respondent-plaintiff.
7. The plaintiff’s suit was resisted by both Srilekha and
Madhulekha, primarily, on the ground that the suit property
was purchased by their mother Rama Vidyarthi from her
own funds and not from any joint family funds. In fact, the
two sisters, who were arrayed as defendants 1 and 2 in the
suit, had specifically denied the existence of any joint family
or the availability of any joint family funds.
8. The Trial Court dismissed the suit by order dated
19.8.1997 citing several reasons for the view taken
including the fact that respondent-plaintiff was an attesting
witness to the sale deed dated 27.9.1961 by which the suit
property was purchased in the name of Rama Vidyarthi;
there was no mention in the sale deed that Rama Vidyarthi
was representing the joint family or that she had purchased
the suit property on behalf of any other person. The learned
Trial Court further held that in the year 1955 when Hari
Shankar Vidyarthi had died there was no joint family in
existence and in fact no claim of any joint family property
was raised until the suit property was purchased in the year
1960-61. The Trial Court was also of the view that if the
other members of the family had any right to the insurance
money such a claim should have been lodged by way of a
separate suit. Aggrieved by the dismissal of the suit, the
respondent-plaintiff filed an appeal before the High Court.
9. Certain facts and events which had occurred during
the pendency of the appeal before the High Court will
require a specific notice as the same form the basis of one
limb of the case projected by the appellant before us in the
present appeal, namely, that the order of the High Court is
an ex-parte order passed without appointing a legal
guardian for the appellant for which reason the said order is
required to be set aside and the matter remanded for a de
novo consideration by the High Court.
10. The first significant fact that has to be noticed in this
regard is the death of Madhulekha Vidyarthi during the
pendency of the appeal and the impleadment of the
appellant as the 8th respondent therein by order dated
31.08.2007. This was on the basis that the appellant is the
sole legal heir of the deceased Madhulekha. The said order,
however, was curiously recalled by the High Court by
another order dated 10.10.2007. The next significant fact
which would require notice is that upon the death of her
mother Srilekha Vidyarthi, the appellant-defendant herself
filed an application for pursuing the appeal in which an
order was passed on 16/18.05.2009 to the effect that the
appellant is already represented in the proceedings through
her counsel (in view of the earlier order impleading the
appellant as legal heir of Madhulekha). However, by the said
order the learned counsel was given liberty to obtain a fresh
vakalatnama from the appellant which, however, was not so
done. In the aforesaid fact situation, the High Court
proceeded to consider the appeal on merits and passed the
impugned judgment on the basis of consideration of the
arguments advanced by the counsel appearing on behalf of
the appellant at the earlier stage, namely, one Shri A.K.
Srivastava and also on the basis of the written arguments
submitted on behalf of the deceased Srilekha Vidyarthi. It
is in these circumstances that the appellant has now, inter
alia, contended that the order passed by the High Court is
without appointing any guardian on her behalf and contrary
to the provisions of Order XXXII Rules 3, 10 and 11 of the
CPC.
11. Insofar as the merits of the appeal are concerned, the
High Court took the view that on the facts before it, details
of which will be noticed in due course, there was a joint
family in existence in which the second wife Rama Vidyarthi
had played a predominant role and that the suit property
was purchased out of the joint family funds namely the
insurance money and the advance received from the Pratap
Press Trust, Kanpur. Insofar as the devolution of shares is
concerned, the High Court took the view that following the
death of Hari Shankar Vidyarthi, as the sole surviving male
heir, the respondent-plaintiff became entitled to 50% of the
suit property and the remaining 50% was to be divided
between the two wives of Hari Shankar Vidyarthi in equal
proportion. Srilekha and Madhulekha Vidyarthi, i.e.
defendants 1 and 2 in the suit, as daughters of the second
wife, would be entitled to share of Rama Vidyarthi, namely,
25% of the suit property. On their death, the appellant
would be entitled to the said 25% share whereas the
remaining 25% share (belonging to the first wife) being the
subject matter of a Will in favour of her minor grandchildren
(sons of the respondent-plaintiff), the respondentplaintiff
would also get the aforesaid 25% share of the suit
property on behalf of the minors. Accordingly, the suit was
decreed and the order of dismissal of the suit was reversed.
12. The aforesaid order of the High Court dated
12.08.2009 was attempted to be recalled by the appellant-
8
th defendant by filing an application to the said effect which
was also dismissed by the High Court by its order dated
24.11.2009. Challenging both the abovesaid orders of the
High Court, the present appeals have been filed.
13. Having heard learned counsels for the parties, we find
that two issues in the main arise for determination in these
appeals. The first is whether the High Court was correct in
passing the order dated 24.11.2009 on the recall application
filed by the appellant and whether, if the appellant had
really been proceeded ex-parte thereby rendering the said
order untenable in law, as claimed, should the matter be
remitted to the High Court for reconsideration. The second
question arising is with regard to the order dated
12.08.2009 passed by the High Court in First Appeal No.
693 of 1987 so far as the merits thereof is concerned.
14. The detailed facts in which the appellant-8th defendant
came to be impleaded in the suit following the death of
Madhulekha Vidyarthi (defendant No. 2) and thereafter on
the death of Srilekha Vidyarthi (defendant No. 1) has
already been seen. From the facts recorded by the High
Court in its order dated 24.11.2009 it is clear and evident
that the appellant had participated in the proceeding before
the High Court at various stages through counsels.
Therefore, there is no escape from the conclusion that the
order passed in the appeal was not an ex-parte order as
required to be understood in law. The appellant was already
on record as the legal heir of Madhulekha Vidyarthi
(defendant No. 2) and was represented by a counsel. The
High court had passed its final order after hearing the said
counsel and upon consideration of the written arguments
filed in the case. In its order dated 24.11.2009 the High
Court has observed that full opportunity of hearing on
merits was afforded to the appellant. Even before us, the
appellant has been heard at length on the merits of the
case. In these circumstances there can hardly be any
justification to remand the matter to the High Court for a
fresh consideration by setting aside the impugned order.
15. Insofar as the merits of the order of the High Court is
concerned, the sole question involved is whether the suit
property was purchased by Rama Vidyarthi, (defendant
No.1) out of the joint family funds or from her own income.
The affidavit of Rama Vidyarthi in Suit No. 147 of 1968 filed
by Savitri Vidyarthi discloses that she was looking after the
family as the Manager taking care of the respondent No.1,
her step son i.e. the son of the first wife of Hari Shankar
Vidyarthi. In the said affidavit, it is also admitted that she
had received the insurance money following the death of
Hari Shankar Vidyarthi and the same was used for the
purchase of the suit property along with other funds which
she had generated on her own. The virtual admission by the
predecessor-in-interest of the appellant of the use of the
insurance money to acquire the suit property is significant.
Though the claim of absolute ownership of the suit property
had been made by Rama Vidyarthi in the aforesaid affidavit,
the said claim is belied by the true legal position with regard
to the claims/entitlement of the other legal heirs to the
insurance amount. Such amounts constitute the
entitlement of all the legal heirs of the deceased though the
same may have been received by Rama Vidyarthi as the
nominee of her husband. The above would seem to follow
from the view expressed by this Court in Smt. Sarbati Devi
& Anr. vs. Smt. Usha Devi1
which is extracted below.
(Paragraph 12)
“12. Moreover there is one other strong circumstance
in this case which dissuades us
from taking a view contrary to the decisions of
all other High Courts and accepting the view
expressed by the Delhi High Court in the two
recent judgments delivered in the year 1978
and in the year 1982. The Act has been in
force from the year 1938 and all along almost
all the High Courts in India have taken the
view that a mere nomination effected under
Section 39 does not deprive the heirs of their
rights in the amount payable under a life insurance
policy. Yet Parliament has not chosen
to make any amendment to the Act. In such a
situation unless there are strong and compelling
reasons to hold that all these decisions
are wholly erroneous, the Court should be
slow to take a different view. The reasons
given by the Delhi High Court are unconvincing.
We, therefore, hold that the judgments of
the Delhi High Court in Fauza Singh case and
in Uma Sehgal case do not lay down the law
correctly. They are, therefore, overruled. We
approve the views expressed by the other High
Courts on the meaning of Section 39 of the
Act and hold that a mere nomination made
under Section 39 of the Act does not have the
1 1984 (1) SCC 424
effect of conferring on the nominee any beneficial
interest in the amount payable under the
life insurance policy on the death of the assured.
The nomination only indicates the
hand which is authorised to receive the
amount, on the payment of which the insurer
gets a valid discharge of its liability under the
policy. The amount, however, can be claimed
by the heirs of the assured in accordance with
the law of succession governing them.”
16. The fact that the family was peacefully living together
at the time of the demise of Hari Shankar Vidyarthi; the
continuance of such common residence for almost 7 years
after purchase of the suit property in the year 1961; that
there was no discord between the parties and there was
peace and tranquility in the whole family were also rightly
taken note of by the High Court as evidence of existence of a
joint family. The execution of sale deed dated 27.9.1961 in
the name of Rama Vidyarthi and the absence of any
mention thereof that she was acting on behalf of the joint
family has also been rightly construed by the High Court
with reference to the young age of the plaintiff-respondent
(21 years) which may have inhibited any objection to the
dominant position of Rama Vidyarthi in the joint family, a
fact also evident from the other materials on record.
Accordingly, there can be no justification to cause any
interference with the conclusion reached by the High Court
on the issue of existence of a joint family.
17. How could Rama Vidyarthi act as the Karta of the HUF
in view of the decision of this Court in Commissioner of
Income Tax vs. Seth Govindram Sugar Mills Ltd.2
holding that a Hindu widow cannot act as the Karta of a
HUF which role the law had assigned only to males who
alone could be coparceners (prior to the amendment of the
Hindu Succession Act in 2005). The High Court answered
the question in favour of the respondent-plaintiff by relying
on the decision of this Court in Controller of Estate Duty,
Madras Vs. Alladi Kuppuswamy3 wherein the rights
enjoyed by a Hindu widow during time when the Hindu
Women’s Rights to Property Act, 1937 remained in force
were traced and held to be akin to all rights enjoyed by the
2 AIR 1966 SC 24
3
[1977 (3) SCC 385]
deceased husband as a coparcener though the same were
bound by time i.e. life time of the widow (concept of limited
estate) and without any authority or power of alienation. We
do not consider it necessary to go into the question of the
applicability of the ratio of the decision in Controller of
Estate Duty, Madras (supra) to the present case inasmuch
as in the above case the position of a Hindu widow in the
co-parcenary and her right to co-parcenary property to the
extent of the interest of her deceased husband was
considered in the context of the specific provisions of the
Estate Duty Act, 1953. The issue(s) arising presently are
required to be answered from a somewhat different
perspective.
18. While there can be no doubt that a Hindu Widow is not
a coparcener in the HUF of her husband and, therefore,
cannot act as Karta of the HUF after the death of her
husband the two expressions i.e. Karta and Manager may
be understood to be not synonymous and the expression
“Manager” may be understood as denoting a role distinct
from that of the Karta. Hypothetically, we may take the
case of HUF where the male adult coparcener has died and
there is no male coparcener surviving or as in the facts of
the present case, where the sole male coparcener
(respondent-plaintiff - Ashok Vidyarthi) is a minor. In such
a situation obviously the HUF does not come to an end. The
mother of the male coparcener can act as the legal guardian
of the minor and also look after his role as the Karta in her
capacity as his (minor’s) legal guardian. Such a situation
has been found, and in our opinion rightly, to be consistent
with the law by the Calcutta High Court in Sushila Devi
Rampuria v. Income Tax Officer and Anr.AIR 1959 Cal 697
rendered in
the context of the provisions of the Income Tax Act and
while determining the liability of such a HUF to assessment
under the Act. Coincidently the aforesaid decision of the
Calcutta High Court was noticed in Commissioner of
Income Tax vs. Seth Govindram Sugar Mills Ltd.
(supra).
had received the insurance money following the death of
Hari Shankar Vidyarthi and the same was used for the
purchase of the suit property along with other funds which
she had generated on her own. The virtual admission by the
predecessor-in-interest of the appellant of the use of the
insurance money to acquire the suit property is significant.
Though the claim of absolute ownership of the suit property
had been made by Rama Vidyarthi in the aforesaid affidavit,
the said claim is belied by the true legal position with regard
to the claims/entitlement of the other legal heirs to the
insurance amount. Such amounts constitute the
entitlement of all the legal heirs of the deceased though the
same may have been received by Rama Vidyarthi as the
nominee of her husband. The above would seem to follow
from the view expressed by this Court in Smt. Sarbati Devi
& Anr. vs. Smt. Usha Devi1
which is extracted below.
(Paragraph 12)
“12. Moreover there is one other strong circumstance
in this case which dissuades us
from taking a view contrary to the decisions of
all other High Courts and accepting the view
expressed by the Delhi High Court in the two
recent judgments delivered in the year 1978
and in the year 1982. The Act has been in
force from the year 1938 and all along almost
all the High Courts in India have taken the
view that a mere nomination effected under
Section 39 does not deprive the heirs of their
rights in the amount payable under a life insurance
policy. Yet Parliament has not chosen
to make any amendment to the Act. In such a
situation unless there are strong and compelling
reasons to hold that all these decisions
are wholly erroneous, the Court should be
slow to take a different view. The reasons
given by the Delhi High Court are unconvincing.
We, therefore, hold that the judgments of
the Delhi High Court in Fauza Singh case and
in Uma Sehgal case do not lay down the law
correctly. They are, therefore, overruled. We
approve the views expressed by the other High
Courts on the meaning of Section 39 of the
Act and hold that a mere nomination made
under Section 39 of the Act does not have the
1 1984 (1) SCC 424
effect of conferring on the nominee any beneficial
interest in the amount payable under the
life insurance policy on the death of the assured.
The nomination only indicates the
hand which is authorised to receive the
amount, on the payment of which the insurer
gets a valid discharge of its liability under the
policy. The amount, however, can be claimed
by the heirs of the assured in accordance withthe law of succession governing them.”
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.3162-3163 OF 2010
SHREYA VIDYARTHI
VERSUS
ASHOK VIDYARTHI & ORS.
Citation; AIR 2016 SC139:2015 SCCONLINESC 1324:(2015) 16 SCC 46
Dated;DECEMBER 16, 2015.
1. The appellant before us is the 8th Defendant in Suit
No. 630 of 1978 which was instituted by the firstrespondent
herein as the plaintiff. The said suit filed for
permanent injunction and in the alternative for a decree of
partition and separation of shares by metes and bounds
was dismissed by the learned Trial Court. In appeal, the
High Court reversed the order of the Trial Court and decreed
the suit of the respondent-plaintiff with a further
declaration that he is entitled to 3/4th share in the suit
property, namely, House No. 7/89, Tilak Nagar, Kanpur
whereas the appellant (defendant No. 8 in the suit) is
entitled to the remaining 1/4th share in the said property.
Aggrieved, these appeals have been filed.
2. The relevant facts which will have to be noticed may be
enumerated hereinunder.
In the year 1937 one Hari Shankar Vidyarthi married
Savitri Vidyarthi, the mother of the respondent-plaintiff.
Subsequently, in the year 1942, Hari Shankar Vidyarthi
was married for the second time to one Rama Vidyarthi.
Out of the aforesaid second wedlock, two daughters,
namely, Srilekha Vidyarthi and Madhulekha Vidyarthi
(defendants 1 and 2 in Suit No. 630 of 1978) were born.
The appellant-eighth defendant Shreya Vidyarthi is the
adopted daughter of Srilekha Vidyarthi (since deceased) and
also the legatee/ beneficiary of a Will left by Madhulekha
Vidyarthi. Page 3
3
3. The dispute in the present case revolves around the
question whether the suit property, as described above, was
purchased by sale deed dated 27.9.1961 by Rama Vidyarthi
from the joint family funds or out of her own personal
funds. The suit property had been involved in several
previous litigations between the parties, details of which
may now require a close look.
4. In the year 1968 Suit No. 147/1968 was instituted by
Savitri Vidyarthi (mother of the respondent-plaintiff)
contending that the suit property being purchased from the
joint family funds a decree should be passed against the
daughters of Rama Vidyarthi from interfering with her
possession. This suit was dismissed under the provisions of
Order VII Rule 11 CPC on account of failure to pay the
requisite court fee. In the said suit the respondent-plaintiff
had filed an affidavit dated 24.2.1968 stating that he had
willfully relinquished all his rights and interests, if any, in
the suit property. The strong reliance placed on the said
affidavit on behalf of the appellant in the course of thePage 4
4
arguments advanced on her behalf needs to be dispelled by
the fact that an actual reading of the said affidavit discloses
that such renunciation was only in respect of the share of
Rama Devi in the suit property and not on the entirety
thereof. Consistent with the above position is the suit filed
by the respondent-plaintiff i.e. Suit No. 21/70/1976 seeking
partition of the joint family properties. The said suit was
again dismissed under the provisions of Order VII Rule 11
CPC for failure to pay the requisite court fee. It also
appears that Rama Vidyarthi the predecessor-in-interest of
the present appellant had filed Suit No. 37/1969 under
Section 6 of the Specific Relief Act for recovery of possession
of two rooms of the suit property which, according to her,
had been forcibly occupied by the present respondentplaintiff.
During the pendency of the aforesaid suit i.e.
37/1969 Rama Vidyarthi had passed away. The aforesaid
suit was decreed in favour of the legal heirs of the plaintiffRama
Vidyarthi namely, Srilekha and Madhulekha
Vidyarthi on 4.2.1976. Page 5
5
5. It is in the aforesaid fact situation that the suit out of
which the present appeals have arisen i.e. Suit No. 630 of
1978 was filed by the present respondent-plaintiff
impleading Srilekha Vidyarthi (mother of the appellant) and
Madhulekha Vidyarthi (testator of the Will in favour of the
appellant) as defendants 1 and 2 and seeking the reliefs
earlier noticed.
6. The specific case pleaded by the plaintiff in the suit
was that the plaintiff’s father, Hari Shankar Vidyarthi, died
on 14.3.1955 leaving behind his two widows i.e. Savitri
Vidyarthi (first wife) and Rama Vidyarthi (second wife).
According to the plaintiff, the second wife i.e. Rama
Vidyarthi had managed the day to day affairs of the entire
family which was living jointly. The plaintiff had further
pleaded that Rama Vidyarthi was the nominee of an
insurance policy taken out by Hari Shankar Vidyarthi
during his life time and that she was also receiving a
monthly maintenance of a sum of Rs. 500/- on behalf of the
family from the “Pratap Press Trust, Kanpur” of which Hari
Shankar Vidyarthi was the managing trustee. In the suit
filed, it was further pleaded that Rama Vidyarthi received a
sum of Rs. 33,000/- out of the insurance policy and also a
sum of Rs. 15,000/- from Pratap Press Trust, Kanpur as
advance maintenance allowance. It was claimed that the
said amounts were utilized to purchase the suit property on
27.9.1961. It was, therefore, contended that the suit
property is joint family property having been purchased out
of joint family funds. The plaintiff had further stated that
all members of the family including the first wife, the first
respondent and his two step sisters i.e. Srilekha and
Madhulekha Vidyarthi had lived together in the suit
property. As the relationship between the parties had
deteriorated/changed subsequently and the plaintiffrespondent
and his mother (Savitri Vidyarthi) were not
permitted to enter the suit property and as a suit for
eviction was filed against the first respondent (37 of 1969)
by Rama Vidyarthi the instant suit for permanent injunction
and partition was instituted by the respondent-plaintiff.
7. The plaintiff’s suit was resisted by both Srilekha and
Madhulekha, primarily, on the ground that the suit property
was purchased by their mother Rama Vidyarthi from her
own funds and not from any joint family funds. In fact, the
two sisters, who were arrayed as defendants 1 and 2 in the
suit, had specifically denied the existence of any joint family
or the availability of any joint family funds.
8. The Trial Court dismissed the suit by order dated
19.8.1997 citing several reasons for the view taken
including the fact that respondent-plaintiff was an attesting
witness to the sale deed dated 27.9.1961 by which the suit
property was purchased in the name of Rama Vidyarthi;
there was no mention in the sale deed that Rama Vidyarthi
was representing the joint family or that she had purchased
the suit property on behalf of any other person. The learned
Trial Court further held that in the year 1955 when Hari
Shankar Vidyarthi had died there was no joint family in
existence and in fact no claim of any joint family property
was raised until the suit property was purchased in the year
1960-61. The Trial Court was also of the view that if the
other members of the family had any right to the insurance
money such a claim should have been lodged by way of a
separate suit. Aggrieved by the dismissal of the suit, the
respondent-plaintiff filed an appeal before the High Court.
9. Certain facts and events which had occurred during
the pendency of the appeal before the High Court will
require a specific notice as the same form the basis of one
limb of the case projected by the appellant before us in the
present appeal, namely, that the order of the High Court is
an ex-parte order passed without appointing a legal
guardian for the appellant for which reason the said order is
required to be set aside and the matter remanded for a de
novo consideration by the High Court.
10. The first significant fact that has to be noticed in this
regard is the death of Madhulekha Vidyarthi during the
pendency of the appeal and the impleadment of the
appellant as the 8th respondent therein by order dated
31.08.2007. This was on the basis that the appellant is the
sole legal heir of the deceased Madhulekha. The said order,
however, was curiously recalled by the High Court by
another order dated 10.10.2007. The next significant fact
which would require notice is that upon the death of her
mother Srilekha Vidyarthi, the appellant-defendant herself
filed an application for pursuing the appeal in which an
order was passed on 16/18.05.2009 to the effect that the
appellant is already represented in the proceedings through
her counsel (in view of the earlier order impleading the
appellant as legal heir of Madhulekha). However, by the said
order the learned counsel was given liberty to obtain a fresh
vakalatnama from the appellant which, however, was not so
done. In the aforesaid fact situation, the High Court
proceeded to consider the appeal on merits and passed the
impugned judgment on the basis of consideration of the
arguments advanced by the counsel appearing on behalf of
the appellant at the earlier stage, namely, one Shri A.K.
Srivastava and also on the basis of the written arguments
submitted on behalf of the deceased Srilekha Vidyarthi. It
is in these circumstances that the appellant has now, inter
alia, contended that the order passed by the High Court is
without appointing any guardian on her behalf and contrary
to the provisions of Order XXXII Rules 3, 10 and 11 of the
CPC.
11. Insofar as the merits of the appeal are concerned, the
High Court took the view that on the facts before it, details
of which will be noticed in due course, there was a joint
family in existence in which the second wife Rama Vidyarthi
had played a predominant role and that the suit property
was purchased out of the joint family funds namely the
insurance money and the advance received from the Pratap
Press Trust, Kanpur. Insofar as the devolution of shares is
concerned, the High Court took the view that following the
death of Hari Shankar Vidyarthi, as the sole surviving male
heir, the respondent-plaintiff became entitled to 50% of the
suit property and the remaining 50% was to be divided
between the two wives of Hari Shankar Vidyarthi in equal
proportion. Srilekha and Madhulekha Vidyarthi, i.e.
defendants 1 and 2 in the suit, as daughters of the second
wife, would be entitled to share of Rama Vidyarthi, namely,
25% of the suit property. On their death, the appellant
would be entitled to the said 25% share whereas the
remaining 25% share (belonging to the first wife) being the
subject matter of a Will in favour of her minor grandchildren
(sons of the respondent-plaintiff), the respondentplaintiff
would also get the aforesaid 25% share of the suit
property on behalf of the minors. Accordingly, the suit was
decreed and the order of dismissal of the suit was reversed.
12. The aforesaid order of the High Court dated
12.08.2009 was attempted to be recalled by the appellant-
8
th defendant by filing an application to the said effect which
was also dismissed by the High Court by its order dated
24.11.2009. Challenging both the abovesaid orders of the
High Court, the present appeals have been filed.
13. Having heard learned counsels for the parties, we find
that two issues in the main arise for determination in these
appeals. The first is whether the High Court was correct in
passing the order dated 24.11.2009 on the recall application
filed by the appellant and whether, if the appellant had
really been proceeded ex-parte thereby rendering the said
order untenable in law, as claimed, should the matter be
remitted to the High Court for reconsideration. The second
question arising is with regard to the order dated
12.08.2009 passed by the High Court in First Appeal No.
693 of 1987 so far as the merits thereof is concerned.
14. The detailed facts in which the appellant-8th defendant
came to be impleaded in the suit following the death of
Madhulekha Vidyarthi (defendant No. 2) and thereafter on
the death of Srilekha Vidyarthi (defendant No. 1) has
already been seen. From the facts recorded by the High
Court in its order dated 24.11.2009 it is clear and evident
that the appellant had participated in the proceeding before
the High Court at various stages through counsels.
Therefore, there is no escape from the conclusion that the
order passed in the appeal was not an ex-parte order as
required to be understood in law. The appellant was already
on record as the legal heir of Madhulekha Vidyarthi
(defendant No. 2) and was represented by a counsel. The
High court had passed its final order after hearing the said
counsel and upon consideration of the written arguments
filed in the case. In its order dated 24.11.2009 the High
Court has observed that full opportunity of hearing on
merits was afforded to the appellant. Even before us, the
appellant has been heard at length on the merits of the
case. In these circumstances there can hardly be any
justification to remand the matter to the High Court for a
fresh consideration by setting aside the impugned order.
15. Insofar as the merits of the order of the High Court is
concerned, the sole question involved is whether the suit
property was purchased by Rama Vidyarthi, (defendant
No.1) out of the joint family funds or from her own income.
The affidavit of Rama Vidyarthi in Suit No. 147 of 1968 filed
by Savitri Vidyarthi discloses that she was looking after the
family as the Manager taking care of the respondent No.1,
her step son i.e. the son of the first wife of Hari Shankar
Vidyarthi. In the said affidavit, it is also admitted that she
had received the insurance money following the death of
Hari Shankar Vidyarthi and the same was used for the
purchase of the suit property along with other funds which
she had generated on her own. The virtual admission by the
predecessor-in-interest of the appellant of the use of the
insurance money to acquire the suit property is significant.
Though the claim of absolute ownership of the suit property
had been made by Rama Vidyarthi in the aforesaid affidavit,
the said claim is belied by the true legal position with regard
to the claims/entitlement of the other legal heirs to the
insurance amount. Such amounts constitute the
entitlement of all the legal heirs of the deceased though the
same may have been received by Rama Vidyarthi as the
nominee of her husband. The above would seem to follow
from the view expressed by this Court in Smt. Sarbati Devi
& Anr. vs. Smt. Usha Devi1
which is extracted below.
(Paragraph 12)
“12. Moreover there is one other strong circumstance
in this case which dissuades us
from taking a view contrary to the decisions of
all other High Courts and accepting the view
expressed by the Delhi High Court in the two
recent judgments delivered in the year 1978
and in the year 1982. The Act has been in
force from the year 1938 and all along almost
all the High Courts in India have taken the
view that a mere nomination effected under
Section 39 does not deprive the heirs of their
rights in the amount payable under a life insurance
policy. Yet Parliament has not chosen
to make any amendment to the Act. In such a
situation unless there are strong and compelling
reasons to hold that all these decisions
are wholly erroneous, the Court should be
slow to take a different view. The reasons
given by the Delhi High Court are unconvincing.
We, therefore, hold that the judgments of
the Delhi High Court in Fauza Singh case and
in Uma Sehgal case do not lay down the law
correctly. They are, therefore, overruled. We
approve the views expressed by the other High
Courts on the meaning of Section 39 of the
Act and hold that a mere nomination made
under Section 39 of the Act does not have the
1 1984 (1) SCC 424
effect of conferring on the nominee any beneficial
interest in the amount payable under the
life insurance policy on the death of the assured.
The nomination only indicates the
hand which is authorised to receive the
amount, on the payment of which the insurer
gets a valid discharge of its liability under the
policy. The amount, however, can be claimed
by the heirs of the assured in accordance with
the law of succession governing them.”
16. The fact that the family was peacefully living together
at the time of the demise of Hari Shankar Vidyarthi; the
continuance of such common residence for almost 7 years
after purchase of the suit property in the year 1961; that
there was no discord between the parties and there was
peace and tranquility in the whole family were also rightly
taken note of by the High Court as evidence of existence of a
joint family. The execution of sale deed dated 27.9.1961 in
the name of Rama Vidyarthi and the absence of any
mention thereof that she was acting on behalf of the joint
family has also been rightly construed by the High Court
with reference to the young age of the plaintiff-respondent
(21 years) which may have inhibited any objection to the
dominant position of Rama Vidyarthi in the joint family, a
fact also evident from the other materials on record.
Accordingly, there can be no justification to cause any
interference with the conclusion reached by the High Court
on the issue of existence of a joint family.
17. How could Rama Vidyarthi act as the Karta of the HUF
in view of the decision of this Court in Commissioner of
Income Tax vs. Seth Govindram Sugar Mills Ltd.2
holding that a Hindu widow cannot act as the Karta of a
HUF which role the law had assigned only to males who
alone could be coparceners (prior to the amendment of the
Hindu Succession Act in 2005). The High Court answered
the question in favour of the respondent-plaintiff by relying
on the decision of this Court in Controller of Estate Duty,
Madras Vs. Alladi Kuppuswamy3 wherein the rights
enjoyed by a Hindu widow during time when the Hindu
Women’s Rights to Property Act, 1937 remained in force
were traced and held to be akin to all rights enjoyed by the
2 AIR 1966 SC 24
3
[1977 (3) SCC 385]
deceased husband as a coparcener though the same were
bound by time i.e. life time of the widow (concept of limited
estate) and without any authority or power of alienation. We
do not consider it necessary to go into the question of the
applicability of the ratio of the decision in Controller of
Estate Duty, Madras (supra) to the present case inasmuch
as in the above case the position of a Hindu widow in the
co-parcenary and her right to co-parcenary property to the
extent of the interest of her deceased husband was
considered in the context of the specific provisions of the
Estate Duty Act, 1953. The issue(s) arising presently are
required to be answered from a somewhat different
perspective.
18. While there can be no doubt that a Hindu Widow is not
a coparcener in the HUF of her husband and, therefore,
cannot act as Karta of the HUF after the death of her
husband the two expressions i.e. Karta and Manager may
be understood to be not synonymous and the expression
“Manager” may be understood as denoting a role distinct
from that of the Karta. Hypothetically, we may take the
case of HUF where the male adult coparcener has died and
there is no male coparcener surviving or as in the facts of
the present case, where the sole male coparcener
(respondent-plaintiff - Ashok Vidyarthi) is a minor. In such
a situation obviously the HUF does not come to an end. The
mother of the male coparcener can act as the legal guardian
of the minor and also look after his role as the Karta in her
capacity as his (minor’s) legal guardian. Such a situation
has been found, and in our opinion rightly, to be consistent
with the law by the Calcutta High Court in Sushila Devi
Rampuria v. Income Tax Officer and Anr.AIR 1959 Cal 697
rendered in
the context of the provisions of the Income Tax Act and
while determining the liability of such a HUF to assessment
under the Act. Coincidently the aforesaid decision of the
Calcutta High Court was noticed in Commissioner of
Income Tax vs. Seth Govindram Sugar Mills Ltd.
(supra).
19. A similar proposition of law is also to be found in
decision of the Madhya Pradesh High Court in Dhujram v.
Chandan Singh & Ors. 1974 MPL J554
though, again, in a little different
context. The High Court had expressed the view that the
word ‘Manager’ would be consistent with the law if
understood with reference to the mother as the natural
guardian and not as the Karta of the HUF.
20. In the present case, Rama Vidyarthi was the step
mother of the respondent-plaintiff -Ashok Vidyarthi who at
the time of the death of his father - Hari Shankar Vidyarthi,
was a minor. The respondent plaintiff was the only
surviving male coparcener after the death of Hari Shankar
Vidyarthi. The materials on record indicate that the natural
mother of Ashok Vidyarthi, Smt. Savitri Vidyarthi, had
played a submissive role in the affairs of the joint family and
the step mother, Rama Vidyarthi i.e. second wife of Hari
Shankar Vidyarthi had played an active and dominant role
in managing the said affairs. The aforesaid role of Rama
5 1974 MPL J554
Vidyarthi was not opposed by the natural mother, Savitri
Vidyarthi. Therefore, the same can very well be understood
to be in her capacity as the step mother of the respondentplaintiff-Ashok
Vidyarthi and, therefore, consistent with the
legal position which recognizes a Hindu Widow acting as the
Manager of the HUF in her capacity as the guardian of the
sole surviving minor male coparcener. Such a role
necessarily has to be distinguished from that of a Karta
which position the Hindu widow cannot assume by virtue of
her dis-entitlement to be a coparcener in the HUF of her
husband. Regrettably the position remain unaltered even
after the amendment of the Hindu Succession Act in 2005.
21. In the light of the above, we cannot find any error in
the ultimate conclusion of the High Court on the issue in
question though our reasons for the aforesaid conclusion
are somewhat different.
22. Before parting we may note that the history of the
earlier litigation between the parties involving the suit
property would not affect the maintainability of the suit in
question (630 of 1978). Suit No.37 of 1969 filed by Rama
Vidyarthi was a suit under Section 6 of the Specific Relief
Act whereas Suit No.147 of 1968 and Suit No. 21/70/1976
filed by first wife Savitri Vidyarthi and Ashok Vidyarthi,
respectively, were dismissed under Order VII Rule 11 CPC
on account of non-payment of court fee. In these
circumstances, the suit out of which the present appeal has
arisen i.e. Suit No. 630 of 1978 was clearly maintainable
under Order VII Rule 13 CPC.
23. The apportionment of shares of the parties in the suit
property made by the High Court, in the manner discussed
above, also does not disclose any illegality or infirmity so as
to justify any correction by us. It is our considered view that
having held and rightly that the suit property was a joint
family property, the respondent-plaintiff was found entitled
to seek partition thereof and on that basis the
apportionment of shares in the suit property between the
plaintiff and the contesting eighth defendant was rightly
made by the High Court in accordance with the reliefs
sought in the suit.
24. For the aforesaid reasons, we do not find any merit in
these appeals, the same are being accordingly dismissed.
However, in the facts of the case we leave the parties to bear
their own costs.
…….....................,J.
(RANJAN GOGOI)
……....................,J.
(N.V. RAMANA)
NEW DELHI
DECEMBER 16, 2015.
decision of the Madhya Pradesh High Court in Dhujram v.
Chandan Singh & Ors. 1974 MPL J554
though, again, in a little different
context. The High Court had expressed the view that the
word ‘Manager’ would be consistent with the law if
understood with reference to the mother as the natural
guardian and not as the Karta of the HUF.
20. In the present case, Rama Vidyarthi was the step
mother of the respondent-plaintiff -Ashok Vidyarthi who at
the time of the death of his father - Hari Shankar Vidyarthi,
was a minor. The respondent plaintiff was the only
surviving male coparcener after the death of Hari Shankar
Vidyarthi. The materials on record indicate that the natural
mother of Ashok Vidyarthi, Smt. Savitri Vidyarthi, had
played a submissive role in the affairs of the joint family and
the step mother, Rama Vidyarthi i.e. second wife of Hari
Shankar Vidyarthi had played an active and dominant role
in managing the said affairs. The aforesaid role of Rama
5 1974 MPL J554
Vidyarthi was not opposed by the natural mother, Savitri
Vidyarthi. Therefore, the same can very well be understood
to be in her capacity as the step mother of the respondentplaintiff-Ashok
Vidyarthi and, therefore, consistent with the
legal position which recognizes a Hindu Widow acting as the
Manager of the HUF in her capacity as the guardian of the
sole surviving minor male coparcener. Such a role
necessarily has to be distinguished from that of a Karta
which position the Hindu widow cannot assume by virtue of
her dis-entitlement to be a coparcener in the HUF of her
husband. Regrettably the position remain unaltered even
after the amendment of the Hindu Succession Act in 2005.
21. In the light of the above, we cannot find any error in
the ultimate conclusion of the High Court on the issue in
question though our reasons for the aforesaid conclusion
are somewhat different.
22. Before parting we may note that the history of the
earlier litigation between the parties involving the suit
property would not affect the maintainability of the suit in
question (630 of 1978). Suit No.37 of 1969 filed by Rama
Vidyarthi was a suit under Section 6 of the Specific Relief
Act whereas Suit No.147 of 1968 and Suit No. 21/70/1976
filed by first wife Savitri Vidyarthi and Ashok Vidyarthi,
respectively, were dismissed under Order VII Rule 11 CPC
on account of non-payment of court fee. In these
circumstances, the suit out of which the present appeal has
arisen i.e. Suit No. 630 of 1978 was clearly maintainable
under Order VII Rule 13 CPC.
23. The apportionment of shares of the parties in the suit
property made by the High Court, in the manner discussed
above, also does not disclose any illegality or infirmity so as
to justify any correction by us. It is our considered view that
having held and rightly that the suit property was a joint
family property, the respondent-plaintiff was found entitled
to seek partition thereof and on that basis the
apportionment of shares in the suit property between the
plaintiff and the contesting eighth defendant was rightly
made by the High Court in accordance with the reliefs
sought in the suit.
24. For the aforesaid reasons, we do not find any merit in
these appeals, the same are being accordingly dismissed.
However, in the facts of the case we leave the parties to bear
their own costs.
…….....................,J.
(RANJAN GOGOI)
……....................,J.
(N.V. RAMANA)
NEW DELHI
DECEMBER 16, 2015.
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