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PETITIONER: P.PERIASAMI (DEAD) BY LRS.

       Vs.

RESPONDENT: P. PERIATHAMBI AND OTHERS

DATE OF JUDGMENT11/10/1995

BENCH: PUNCHHI, M.M. BENCH: PUNCHHI, M.M. MANOHAR SUJATA V. (J)

CITATION:  1995 SCC  (6) 523        1995 SCALE  (6)50

ACT:

HEADNOTE:

JUDGMENT:                             WITH                 CIVIL APPEAL NO.667 OF 1989 P.A. Periasami Muthiriar & Ors. V. P. Periasami Muthiriar and others                          O R D E R      These are cross appeals against the judgment and decree dated January 11, 1979 of the High Court of Madras passed in Appeals Nos.141 and of 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 details that we have thought it expedient to resort to tremendous shrinking. For our purpose, we condense them to say, sufficiently, 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 properties 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  defendants joined  issue with  the plaintiffs, on the question  of the  descended properties being joint Hindu family properties,  taking the  plea that the properties had

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come from  the elder to his three sons by way of inheritance and not  on basis  of supervisorship.  The  assumption  that those three sons and the elder were members of a joint Hindu family was  refuted. As  a consequence,  it was pleaded that the so-called  accretion to  the  properties  could  not  be related to  the nucleus factually, as also because unless it could be  proved that  the nucleus  was owned  by the  joint Hindu family,  the accretions  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  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 hereinbefore,  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  does it  descend by inheritance to them in well defined shares  as tenants-in-common. On this question there has been  grave conflict  of opinion in the High Court 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  vs. Srinivasachariar, wherein the following passage of relevance appears in the opinion expressed by Kumaraswami 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 Balwant Singh vs. Rani      Kishore (1898)  20 All. 267=25 I.A. 54=2      C.W.N. 273=7  Sar. 279  (P.C)  that  the      text,           "though immoveables  or bipeds have           been acquired  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".      is only  a moral  precept and not a rule      of law  capable of  being  enforced.  As      pointed out in Madan Gopal vs. Ram Buksh      (1863)  6   W.R.  71   and   Jugmohandas      Mangaladas vs.  Sir Mangaldoss Nathubhoy      (1889) 10  Bom. 528  the son acquires no      legal rights  over  his  father’s  self-      acquisitions by  reason of  the text  of      the Mitakshara  (Ch.I, Ss1, 27) but that      his right  is imperfect one incapable of      being enforced at law.           It is  difficult to  see how  there      can  be  any  co-parcenary  between  the      father and  the sons  as  regards  self-      acquired property  over which  the  sons      have  no   legal  claim  or  enforceable      rights. Co-parcenary  and supervisorship      imply the  existence of co-ownership and      of rights  of partition  enforceable  at      law and  a  mere  moral  injunction  can

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    hardly be  the  foundation  of  a  legal      right. As  observed by the Privy Council      in Rani  sartaj Kuari  vs. Deoraj  Kuari      (1888) 10 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 connected with      a right  to partition  that it  does not      exist where  there is  no right to it. A      contention was  raised during the course      of the argument before the Privy Council      in Raja  Chelikant Venkayamma  vs.  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      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 will      come to  him; but  is it  anything  more      than a Spes?" So far as a father’s self-      acquisitions  are  concerned,  the  son,      though   undivided,    has   only   spes      succession is  and he stands in relation      to that property in the same position as      heir under  Hindu Law.  The 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 Kumar  Lata vs. Moulvi      Reazuddeen   Hussain    10    B.L.R.183.      ancestral property may be said to be co-      extensive   with    the    objects    of      apratibandha   daya    or   unobstructed      inheritance.                     (Emphasis supplied by us)      Contrary views  have been expressed in Mst. Ram Dei Vs. Mst. Gyarsi I.L.R. 1949 Allahabad 150 =A.I.R. 1949 Allahabad 545 (F.B.)  and many other cases to which reference need not be made.  In A.I.R. 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 Judges refrained from doing  so for  by then  the Full Bench case of 1921 had been treated  as stare  decisis. Likewise  after a  lapse of more than  half a century, we would 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 19 thereof, which says that if two or  more heirs  succeed together  to the  property of an intestate they shall take the property - (a) save  as otherwise  expressly provided  in this Act, per capita a and not per stripes; and (b) as tenants-in-common and not as joint tenants.      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-common,  they could not  thus treat  such properties  in their hands, even

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though joint in enjoyment, as joint Hindu family properties. Likewise  the  income  derived  therefrom,  if  employed  to purchase other property, would not 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 properties 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 plea has obvious results. If the  parties herein  were co-owners  of that property and the said property had been purchased from the income derived from joint  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 supervisorship.  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  possession of these two branches of the family, sought  to  be  partitioned,  was  not  joint  Hindu  family property because  the three  sons obtained it by inheritance from their father, the last elder, and their status was that of tenants-in-common,  and if the accretions to the property had been  made out  of the income of the joint property then these were  accountable, as  held by the High Court but 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 without any order as to costs.