Title not extracted — [1995] Supp. 4 S.C.R. 230

The following Order of the Court was delivered :

These are cross appeals against the judgment and decree dated January 11, 1979 of the High Court of Madras passed in Appeals Nos. 141 B and 142 of 1972 and the cross objections.

It was a suit for partition between two branches of the same family. The properties involved were entirely agricultural. The facts as depicted in the judgment of the High Court are so interwoven with so many <letails that we have thought it expedient to resort to tremendous shrinking. For our purpose, we condense them to say, sufficedly, that there was an elder, high in the line, _who owned these properties. These were self acquired. When he died years ago, he left behind three sons. He had by then no grand-sons born from the loins of those three sons. The property on his death thus came in possession of the three sons. When eventually sons were born to those sons and thereafter grand-sons, there came a day when they sought to effect a partition. In this spell of time certain properties allegedly stood purchased out of the income derived from those properties and they were also brought in, being within the nucleus and hence claimed to be partible. It is in this manner that the dispute was spread within the two branches of the family representing lines of two brothers. The plaintiffs claimed partition on the basis that the propertiec received from the family elder and the accretions made thereto from the income derived from the said property, were both joint Hindu family properties and out of which they were entitled to their defined shares. On the other hand, the defen- F dants joined issue with the plaintiffs, on the question of the descended properties being joint Hindu family properties, taking the plea that the properties had come from the elder to his three sons by way of inheritance and not on basis of survivorship. The assumption that those three sons and the elder were members of a joint Hindu family was refuted. As a conse- quence, it was pleaded that the so-called accretion to the properties could not be related to th_e nucleus factually, as also because unless it could be proved that the nucleus was owned by the joint Hindu family, the accre- tions could not partake the same character. Further, it was pleaded that these accretions were personal accumulations of the defendants and in case it was not so proved, they were in adverse possession thereof, for which they sought a declaration. This in nutshell is the dispute which is before

p. 233 Copy page pinpoint

us; other disputes having been settled in the courts below and others not being put to challenge before us.

The pristinely legal question, as discernible hcreinbefore, is whether under Hindu law self-acquired property of a father goes on his death to his sons (in the absence of grand-sons) in a joint Hindu family way, in joint tenancy, or docs it descend by inheritance to them in well defined shares as tenants-in-common. On this question there has been grave con- tlict of opinion in the High Courts and a lot many precedents of binding value are available. In Madras, however, the law in this respect bears a strain, settled way back by a Full Bench in a decision reported in (AIR 1921 (Vol.8) Madras 168 Viravan Chettiar v. Srinivasaclia1iar, wherein the c following passage of relevance appears in the opinion expressed by Kumarasawmi Sastri, J.

"So far as the text of the Mitakshara dealing with the rights of the sons in their father's self-acquisitions it has been decided by their Lordships of the Privy Council in Ba/want Singh v. Rani Kishore, D (1898) 20 AIL 267 = 25 I.A. 54 = 2 C.W.N. 273 = 7 Sar. 279 (P.C.) that the text,

"though immoveables or bipeds have been acquire1 by a man himself, a gift or sale of them should not be made without convening all the sons. They who are born and they who are yet unbegotten and they who are still in the womb, require the means of support. No gift or sale should therefore be made 11 •

It is difficult to see how there can be any co-parcenmy between the father and the sons as regards self-acquired pro1Je1ty over 1-vhich the sons have no legal clain1 or enforceable lights. Co-parcena1y and siuvivorship i111ply the v.:istence of co-ownership and of 1ights of H

p. 234 Copy page pinpoint

A pa1titio11 enforceable at law and a 111ere n1oral injunction can hardly be the foundation of a legal 11ght. As ohserved by the Privy Council in Rani Smtaj Kumi v. Deoraj Kawi (1888) Ill All. 272=15 I. A. 51 =5 Sar. 139 (P.C.) the property in the paternal or ancestral estate acquired by birth under the Mitakshara Law is so coilnectetl with a right to partition that it docs not exist 1vhere there is no B right lei it. A contention was raised durillg the course of the argument before the Privy Council in Raja Che/ikant Venkayamma v. Raja Chelikani Venkataramanayamma, (1902) 25 Mad. 678 = 29 i.A. 156=12 M.L.J. 299 = 8 Sar. 286 (P.C.) that sons acquire a right by birth in the father's self-acquired property. Lord Macnaghten c observed that he did not quite understand what that right was and observed "He is his father's son and if his father does not dispose of, it wiil come lo him; but is it anything more than a Spes?" So far as a father's self-acquisitions are concenzed, the, son, though undivided, has only ·'Jies succession-is and he stands in relation to that property in the sanie position as heir under Hindti Law. The D very essence of the distinction between apratibandha and sapratibandha daya is the existence of an interest in the son in respect of properties got by his father. As observed by West and Buhler in a passage (Book 2 Introduction page 19) which was approved in Nand K11mar Lala v. Mo11lvi Reazuddeen H11ssai11, 10 E B.L.R. 183, ancestral properly may be said lo be co-extensive with the objects of apartibandha daya or unobstructed inheritance.

(Emphasis supplied by us)

F Contrary vic\VS have been expressed in A1st. Rant Dei v. /\1st. Cyarsi T.L.R. 1949 Allahabad 150 = A.LR. (1949) Allahabad 545 (F.B.) and many other cases to which reference need not be made. In AIR (1959) Madras 253, however, occasion arose to reconsider the above-referred to view of the Full Bench of the Madras High Court, but the learned Judgcs refrained from doing so for by then the Full Bench case of 1921 had been treated as G stare decisis. Likewise after a lapse of more than half a century, \Ve \vould not consider it prudent, just for the sake of uniformity to resolve the conflict raging in the High Courts on this question, more so when the orthodox Hindu Law on the subject is itself now in tumble because of the enactment of the Hindu Succession Act, 1956 and in particular of Section H 19 thereof, which says that if two or more heirs succeed together to the

P_ PERIASAMJ ""- p_ PERIATl-IAMBI 235

property of an intestate they shall take the properly - A

(a) save as other\vise expres:-;Jy provided in this Act; pi;r capita and not per sl!ipcs; and

(b) as tenant~-in-comn1011 and not as joint tenants. B In view of the interpretation put by the Full Bench of the Madras High Court that the sons in such a situation would _get self acquired property of their father by inheritance, having the status as tenants-in-com- mon, they could not thus treat such properties in their hands, even though joint in enjoyment, as joint Hindu family properties. Likewise the income derived therefrom, if employed to purchase other property, would not c cloak the new acquisition with the character of joint Hindu family property but may otherwise be joint properties. We would rather decide this matter on this principle, and we do so accordingly, to hold that the properties which came from the elder, self acquired as they were, and there being no grandsons, cannot be held by the parties to be joint Hindu family proper- D ties but as joint properties simpliciter, capable of partition on that basis.

With regard to the accreted property, there is a reference in the judgment under appeal relating to some accounting; after recording the finding that the defendants have failed to prove that that property was in their adverse possession. This is a finding of fact which need not be disturbed, as it has been sought to, in the cross appeal_ Whenever the plea of adverse possession is projected) inherent in the plea is that someone else was the owner of the property. The failure of the pica has obvious results. If the parties herein were en-owners of that properly and the said property had bc:en purchased fro111 th~ int:o111c derived (ruin joillt property, then obviously the same has to be accounted for as joint property and not as joint Hindu family property. It was like property jointly purchased by co-owners without attracting the rule of succession by way of survivorship. On this clarification, the judgment of the High Court is cleansed of the little vagueness about this particular which accidentally seems to have crept in while dealing with this aspect of the case.

For what we have said above, it is plain that the property in posses- sion of these two branches of the family, sought to be partitioned, was not joint Hindu family property because the three sons obtained it by in- heritance from their father, the last elder, and their status was that of H

236 SUPREME COURT REPORTS (1995] St.:PP. 4 S.C.R.

A tenants-in-common, and if the accretions to the property had been made out of the income of the joint properly then these were accountable, as held by the High Court hut that aspect would have to be decided before the passing of the final decree.

For the foregoing reasons, we dismiss all these three appeals but B without any order as to costs.

R.P. Appeals dismissed.