P. Periasami and Others vs P. Periathambi and Others

Ramaprasada Rao, C.J.—As against a common judgment rendered by the Subordinate Judge of Tiruchirappalli in O.S. No. 124 of 1964

and O.S. No. 161 of 1965, the above appeals arise. The plaintiffs in O.S. No. 124 of 1964 are the appellants in A. S. No. 141 of 1972 and the

same three plaintiffs as above, who are defendants 4 to 6 in O.S. No. 161 of 1965 are the appellants in A.S. No. 142 of 1972. Both the suits are

laid as suits for partition. We shall consider the relative claims of parties in the course of our judgment. In the Court below evidence was recorded

in O.S. No. 124 of 1964. The first plaintiff in O.S. No. 124 of 1964 who is the fourth defendant in O. S. No. 161 of 1965, examined himself as

P.W. 1. The first defendant in O.S. No. 124 of 1964, who is also the first defendant in O.S. No. 161 of 1965, examined himself as D.W. 1 and

the plaintiff, 8th defendant, 13th defendant, 17th defendant and the 18th defendant in O.S. No. 161 of 1965 have examined themselves as D.Ws.

2, 3, 4, 5 and 6 respectively. We shall maintain in these appeals such references to parties for purposes of convenience. The geneological tree

showing the relationship of the parties is set out hereunder for ready reference. The description of the parties are as set out in O.S. No. 161 of

1965.

The common ancestor was one Ponnan Muthiriar hereinafter referred to as Pennan-I. He had three sons Pennan Ambalakaran, who died in the

year 1906, hereinafter referred as Pennan-II and Chinnan Ambalakaran and Vellian Ambalakaran. Pennan-II in turn had three sons, the first son

called Pennan Muthiriar Ambalakaran hereinafter referred to as Pennan-III, the second son Vellian and the third son Anaikutti. Pennan-III married

twice. Through his first wife Nallangal he had defendants 1, 2 and 3 and through his second wife Periakkal, who was originally the 7th defendant in

the suit, and who died pending suit, he had defendants 4, 5, 6, who in turn are the plaintiffs in O.S. No. 124 of 1964. Velliayan had one son, who

is the plaintiff. Anaikutti had four sons, who are defendants 8, 9, 10 and 11. The description of the above parties exhausts the line of Pennan-II.

We now come to Chinna Ambalakaran, the second son of Pennan-I. He had four sons. The only surviving members in this branch are defendant

12, who also died, in the course of the suit defendant 13, defendant 14, defendant 15, who died pending suit and defendant 16. Vellian

Ambalakaran, the third son of Pennan-I, left behind defendants 17 and 18. This defendant 17 died during the pendency of the appeals and his legal

representatives have been brought on record. Even so defendant 18 died during the pendency of the appeals and his legal representative have also

been brought on record in these appeals. There is no showing in the record as to what were the properties left by Pennan-I. In the schedule to the

plaint in O.S. No. 161 of 1965 which is the main suit, the properties left by Pennan-II at the time of his death in 1906 and the properties acquired

in the name of Pennan-II from the years 1906-1951 are the subject-matter of this and the other suit O.S. No. 124 of 1964. The properties which

were left by Pennan-II are all detailed in Schedules AI, BI, CI, DI and EI appended to the plaint in O.S. No. 124 of 1964. The properties which

were acquired in the name of Pennan-III are described in Schedules A, B, C, D to that plaint, plaintiffs and defendants 8 to 11 in O.S. No. 161 of

1965 make common cause as against defendants 1 to 6 therein. Defendants 4 to 6 in O.S. No. 161 of 1965 who are the plaintiffs in O.S. No. 124

of 1964 are the contesting defendants and hence, they are the appellants in A.S. No. 142 of 1972. Defendants 17 and 18 in O.S. No. 161 of

1965 have filed a memorandum of cross-objections in A.S. No. 142 of 1972. The case of the plaintiffs and defendants 8 to 11 (as already stated

they are referred to as such in O.S. No. 161 of 1965) is that all the properties described in Schedules A, B, C, D and the sum and substance of

which are contained in the schedules to the plaint in O.S. No. 124 of 1964 are joint family properties in which the branches of Pennan-III, namely,

defendants 1 to 6, plaintiffs'' branch and Anaikutti''s branch, namely, defendants 8 to 11 are entitled to equal shares. This is resisted by defendants

1 to 6.

The properties in dispute are mostly Nanja and Punja lands and they are situate in four villages. The A Schedule properties are in

Mullikkarumbur Village, B Schedule properties in Kulumani village, the plaint C Schedule properties in Kudalaipatti village and the D Schedule

properties in Koppu North village and E Schedule in Koppu South village. The case of the plaintiffs is that Pennan-II who died in the year 1906,

left considerable properties, which according to the plaintiff, are his own self-acquisitions and that they are comprised in the suit Schedules A to D

and that after the death of Pennan-II, Pennan-III, the plaintiff''s father and the father of defendants all remained as members of a Hindu undivided

family and that Pennan-III was the manager thereof and that Pennan-III wife the surplus income from the family properties acquired various

properties but in his name set out in Schedules A to D and that Pennan-III had no independent means of income other than joint family income and

that therefore all such properties acquired and left by Pennan-II and all those properties added to them by Pennan-III when he was manager of the

joint family are all partible properties and that the plaintiff would be entitled to a one-third share therein. The alternative case is that even if the

properties standing in the name of Pennan-III are to be considered as his own properties, he threw them into the common stock and thus, there

was a blending of such properties with joint) family properties and that Pennan-III, Vellian, the plaintiff''s father and Anaikutti, the father of

defendants 8 to 11 treated such blended properties as joint family properties and in that sense also, he was entitled to his legitimate share.

We have to note at this stage a second set of pleadings and a different case which is commonly fought out as between the plaintiff and

defendants 1 to 11 on the one hand and defendants 12 to 18 on the other. The case of the plaintiff is that defendants 12 to 18 have no interest in

the suit properties at all. To further his contention a common cause is made through the fourth defendant that Pennan-I died about 75 years ago

and he left very little properties which did not produce any income and that after the death of Pennan-I, Pennan-II left the village and his two

brothers Chinnan and Vellian and what little properties Pennan-I left were taken over by Chinnan and Vellian and therefore, there was a severance

in status and in enjoyment between Pennan-II and his two brothers and therefore the branch of Chinnan and Vellian now represented by

defendants 12 to 18 have no interest in the suit properties at all. On the other hand, defendants 17 and 18, who resisted such a stand would aver

that'' there was no division or partition as between Pennan-II and Chinnan and Vellian and that the family being an agricultural family, Pennan-II

continued to be the manager and notwithstanding the fact that each of the branches grew from time to time by the birth of sons and grandsons,

there was no partition at all and the properties acquired by Pennan-II in the four villages referred to in the plaint and the later accretions should be

treated as joint family properties in which they should be deemed to be fee sharers. They admit that defendants 17 and 18 were in possession and

enjoyment of some properties in some of the villages referred to above and, that, therefore, they were entitled to a one-sixth share each, as their

father Vellian was entiled to a one-third share therein. They would allege that the common cause made by the plaintiff and other defendants in the

action that Pennan-II left the village leaving his two brothers Chinnan and Vellian and fee available family properties left by Pennan-I, is not true.

Ultimately, defendants 17 and 18 contended that the lands in their possession should not be disturbed and even if a decree for partition, is made,

accepting their contentions, those lands should be allotted to them. As already stated, the common cause made by the contesting parties was that

the only properties left by Pennan-I were taken over by his two sons, Chinnan and Vellian and that, therefore, defendants 17 and 18 have no more

surviving interest or title in the other properties of Pennan-II. We may at once state that in so far as defendant 13 is concerned, he has filed a

memo. of compromise and adjusted his claim with the appellant and respondents 1 to 8. It is recorded.

We shall presently consider whether the claim of the 17th and 18th defendants, whose legal representatives are now before us and who have

filed cross-objections in A.S. No. 142 of 1972, questioning the finding of the trial Court that Pennan-II left his father''s properties (Pennan-I''s) and

disclaimed totally any interest therein and made it over to his other two brothers to be enjoyed by them absolutely, is sustainable or not. No

independent case was put forward by defendants 13 to 16. Defendant 12 died and his legal representatives were brought on record.

We shall now take up the main contest as between the plaintiff and defendants 8 to 11 on the one hand and defendants 1 to 6 on the other. It is

common case of parties that Pennan-II when he died in or about 1906 left the properties in the four villages as above and those properties should

be taken to be his self-acquisitions and not properties imprinted with the character of ancestral properties. The case of the plaintiff is that after the

death of Pennan-II, Pennan-III the plaintiff''s father and the father of defendants 8 to 11 constituted members of an undivided Hindu family and

improved the same by purchasing the properties in Pennan-III''s name and that therefore, they were entitled to a one-third share therein.

The fourth defendant who sails along with his natural brothers defendants 5 and 6, would say that his step-brother, the first defendant herein is

the cause of this litigation. He would deny that there were any properties of Pennan-II which formed the nucleus for Pennan-III. The specific case

of the fourth defendant is that after the death of Pennan-II, Pennan-III and his two brothers Vellian and Anaikutti enjoyed their share in the self-

acquisitions of their father Pennan-II separately and that they have been purchasing properties in their own right and to the knowledge of each

other and that after the death of Pennan-II there was a division between the three brothers, namely, Pennan-III and his two brothers and that by

their conduct they made it known that they were divided members. The further case is that Pennan-III was independently securing lease of lands

and borrowing moneys from third parties and it was this which formed the foundation for the various acquisitions made by Pennan-III in his own

name. He would also rely upon a will executed by Pennan-III, in and by which he left certain properties to his sons, defendants 1 to 6 and also to

his two wives. There are positive indicia that the properties which are the subject-matter of these two suits are his self-acquired properties and that

the suit O.S. No. 124 of 1964 was filed against the step-brothers, namely, defendants 1 to 3 for partition based upon the two wills executed by

Pennan-III on 19th July, 1950 and 14th November, 1953. The fourth defendant incidentally states that he has paid-off a large portion of the debt

of Pennan-III besides paying Income Tax, which in any event, should be paid over to him in case the plaintiff''s contention is upheld. He also sets

up an independent claim with regard to item V in the A schedule property and says that it is his own property. Defendants 8 to 11 support the case

of the plaintiff.

We are not traversing the pleas raised by defendant 13 as his claim has been adjusted in this appeal.

On the above material pleadings the following issues have been framed and the suits were tried together as per the directions of this Court.

Whether Pennan Ambalagaran and his three brothers constituted a Hindu joint family as alleged?

Whether the three sons of Pennan Ambalagaran after his death remained as members of the joint family as alleged in the plaint or whether the

three sons separately got and separately enjoyed their shares in the acquisitions of the father?

Whether the properties purchased by Pattaidar Pennan Muthiriar since 1905 are joint family properties as contended by the plaintiff?

Whether 35 cents in item 5 of A schedule is the exclusive property of the 4th defendant?

Whether Akkandi was validly married to Chinnan Ambalagaran, if not whether defendants 12 to 16 have any rights in the family?

What provisions have to be made for discharging the debts contracted by Pattaidar Pennan Muthiriar?

Whether the 4th defendant is entitled to be paid the amounts paid by him for discharge of his father''s debts and the amounts paid towards

agricultural income tax?

Whether the suit had been properly valued and proper court-fee paid?

To what shares if any are the parties entitled and in which items of the suit properties?

Whether the defendants 1 to 6 and their father have prescribed title by adverse possession?

To what relief?

The learned Judge held that Pennan-III and his two brothers remained as members of a joint family as alleged in the plaint and that the

properties purchased by Pennan-III and the properties purchased by the fourth defendant described as item 5 in the A schedule are all joint family

properties and that the suit properties are not the self-acquisitions of Pennan-III. There was no serious argument on the finding that item 5 in the A

schedule standing in the name of the fourth defendant is joint family property. We, therefore, confirm this finding of the trial Court. After answering

the other issues, the trial Court decreed both the suits. Hence, the appeal A.S. No. 142 of 1972 by defendants 4 to 6 and by them as plaintiffs in

O.S. No. 124 of 1964, the Appeal A.S. No, 141 of 1972.

In order to set at rest the controversy whether Pennan-II did have at the time of his death any ancestral properties which he obtained from

Pennan-I, it would be convenient at this stage to deal with that part of the dispute as between the branch of Pennan-II and the two other sons of

Pennan-I, who figured as defendants 12 to 18 in the suit. We have already referred to the fact that defendant 13 after adjusting his differences filed

a memorandum of compromise and therefore, the contest between defendant 13 on the one and the members of the branch of Pennan-II may be

closed. But the controversy as between the above breach of Pennan-II and defendants 12 and 14 to 18 survives. Excepting for the contest by

defendants 17 and 18, there was no independent argument on the side of defendants 12 and 14 to 16. In their memorandum of cross-objections,

the legal representatives of defendants 17 and 18 question the finding of the trial Court which held against them. The cross-objectors'' case is that

the lower Court acted merely on the hearsay of the plaintiff and some of the defendants, who had no personal knowledge about the transactions

and events. The sheet anchor of their defence is that as there is no clinching evidence to prove that there was a division in status or division by

metes and bounds of the family properties as between Pennan-II and his brothers Chinnan and Vellian, the case of defendants 17 and 18 now

pursued by their legal representatives is that they, as the heirs, who are alive in the branch of Vellian, would be entitled to a one-third share in the

suit properties. They would also make capital of the fact that they have been made parties to this action by the plaintiff and as it is the common

case that their ancestors were in possession of some lands (not identified) in two out of the four villages in which the joint family properties are

situate they should be considered as undivided members of a Hindu Joint family in the light of alleged evidence of such possession of lands which

might have originally belonged to Pennan-I. They produced Exhibits B-143 to B-163 and B-233 to B-254. They are all kist receipts evidencing

payment of kist by the 17th defendant. It is also brought out that the 17th defendant in his own right, mortgaged the lands in Mudalaipatti Village

under Exhibit B-230 and that the legal representatives of the 17th defendant had no discharge the same. On the strength of such possession of

lands, it is said that there was no division in the family at all. Referring to the evidence of D.W. 2, who is the plaintiff who admits such enjoyment of

Mudalaipatti lands by the 17th defendant, since Pennan-II let them to his brothers, they would point out what the plaintiff has no personal

knowledge as to whether Pennan-II and his brothers Chinnan and Vellian were divided or not. They would refer to the alleged vague evidence of

P.W. 1 who is the fourth defendant in O.S. No. 161 of 1965 who also speaks to some-hearsay evidence to the effect that Pennan-III told him that

lands of the family were left over for the benefit of Chinnan and Vellian. Specific reference is made to the fact that P.W. 1 is also not aware of the

date or the mode of division of Pennan-I''s lands. D.W. 5 who is the 17th defendant as well as D.W. 6 would only refer to their separate

enjoyment of the Mudalaipatti lands and would assert that the mere fact that they were in possession of some properties of Pennan-I cannot lead

to the irresistable inference that the ancestors of defendants 12 to 18 should be deemed to have separated themselves from Pennan-II. In the end

however they would pray that defendants 17 and 18 together should be granted a decree for a one third share in the entirety of the admitted joint

family properties which were in the possession of Pennan-II at the time of his death or in any event, the properties in the possession of defendants

17 and 18 respectively he sustained without themselves being deprived of the same.

In answer to this claim in the cross-objections, the contention of the other party contesting the same which include the plaintiff and defendants 1

to 11 is as follows:

Pennan-I as per the record left only two items of properties in Etteri Village as is seen from pattas marked as Exhibits D-1 (a) and D-1 (b) in

an earlier action between the parties in O.S. No. 13 of 1946 on the file of the Sub-Court, Tiruchi. Besides Pennan-I had a one-eighth share along

with seven others in another property as is seen from Exhibit B-271 and both the above lands were dry lands of an extent of 12 to 16 acres and

that as per Exhibit A-196 which was the written statement filed by Pennan-III in an earlier action, the small extent of lands held by Pennan-I were

unproductive dry lands and its income could not have exceeded more than Rs. 50 per annum. A reference is also made in the evidence of Pennan-

III who was examined in O.S. No. 13 of 1946. Pennan-III reiterated in the above suit that the entire lands left by Pennan-I, were cultivated by his

uncles Chinnan and Vellian, the ancestors of defendants 17 and 18 and that Pennan-II was independently exerting himself by taking on lease lands

belonging to third parties besides trading in grains and paddy. The ancestors of defendants 17 and 18 were parties to that suit and never

contradicted the evidence of Pennan-III. In fact in that suit the Court accepted the case of Pennan-III and impliedly negatived the claim of Vellian

and Chinnan over the other properties acquired by Pennan-II. A reasonable inference ''from the conduct of the ancestors of defendants 17 and 18

is that they never claimed any interest in the properties acquired by Pennan-II in his own right and a fortiori therefore, they cannot claim any interest

in the properties of Pennan-III. We are unable to accept the interested testimony of D.W. 5 who is the 17th defendant that his father gave all his

earnings to Pennan-II. He has no personal knowledge about it. Though he is aged 85 years, he would only speak by himself. He has not even seen

Pennan-II and he is not aware personally whether his father gave any money to Pennan-II. Having regard to the fact that D.W. 5 himself would

admit that the so-called ancestral lands which came into the lands of Pennan-II were 12 acres of punja lands and that they were not cultivable

unless there was rain and as there was no corroborative acceptable evidence the case of defendants 17 and 18 that all the properties held by

Pennan-II and later in the possession of Pennan-III and others should be deemed to be joint family properties appears to be a tall and

unacceptable claim. It is not known as to why the 17th defendant who was a party to O.S. No. 13 of 1946 did not give evidence in that suit. The

18th defendant who is younger than him attempted to speak in that case. His evidence was therefore, rightly disbelieved. One other factor which is

relied upon by the trial Court and which is found on the record is that after Pennan-II''s death, it was only Pennan-III and his brothers who sought

for succession certificate to collect the out-standings due to Pennan-II and even at that time neither Vellian nor Chinnan joined them or laid any

claim thereto.

One other factor also looms large though incidentally in this case. The judgment in O.S. No. 13 of 1946 on the file of the Court of the

Subordinate Judge, Tiruchirapalli, was the subject-matter of appeal to the District Court in A.S. No. 883 of 1947. At the appellate stage, the suit

was withdrawn with liberty to the parties to file a fresh suit. Defendants 17 and 18 did not file any such suit but were brought to the scene of action

only by the present plaintiff, who so impleaded them so as to obtain an adjudication of his rights in their presence. The inaction of defendants 17

and 18 lends support to the conclusion that Pennan-II left the ancestral lands with his brothers and was earning by himself without prejudice to the

then joint family properties and that all the acquisitions made by him later should be deemed to be Pennan-II''s properties in which neither the

branch of Chinnan or Vellian including defendants 17 and 18 can claim any share.

Regarding the lands in Mudalaipatti Village, they are the properties purchased by Pennan-III after the death of Pennan-II, under Exhibit A-SS

dated 6th September, 1942. We have already held that the cross-objectors cannot project any right to the properties acquired by Pennan-II.

Defendants 17 and 18 and their legal representatives before us want to take advantage of the fact that the lands were leased back by Pennan-III to

them. The factum of lease was accepted by a competent Court in O.S. No. 13 of 1946. In fact, a similar claim made by defendants 17 and 18 as

is made now, over the Mudalaipatti lands was negatived. As Pennan-III himself purchased the lands in 1942, their possession pursuant to a lease

granted by Pennan-III thereafter could not be for a period of 60 years as claimed by them. Rightly, therefore, the trial Court discountenced such a

plea also. It is, therefore, clear that Mudalaipttai lands are not ancestral lands and the case of the defendants that they paid the kists for the land in

the absence of a patta of such lands in their names is absolutely a false claim and has to be rejected. The appellants have filed the kist receipts and

D.W. 1 in his evidence has stated that the patta for all the lands including Mudalipatti lands stood in the name of Pennan-III and that they were the

owners thereof. The mere fact that Pennan-III allowed defendants 17 and 18 to cultivate the lands purchased by him, under Exhibit A-55 and

which was also referred to by Pennan-III in O.S. No, 13 of 1946 does point out that the case of defendants 17 and 18 wherein they project a

claim over the lands at Mudalaipetti is untrue. In fact, defendants 17 and 18 themselves admit that they were cultivating the land only after it was

purchased by Pennan-III. They could not have, therefore, perfected their title to it by adverse possession. The fact that defendants mortgaged the

Mudalaipatti land under Exhibit B-230 cannot improve the situation. He did not have the original document of title of Exhibit A-55. That was

produced by the appellants in this present suit and marked as such. Obviously defendants 17 and 18, taking advantage of their possession which

was by itself permissive contrived to mortgage the property. The recitals therein belie the case of defendant 17. He gave an indemnity as to title

and would say that himself and his sons are ancestrally enjoying the lands. Even as regards the other mortgage as Exhibit A-232, we are persuaded

to say that the transaction is not a bona fide one. Without being in possession of the title deed and without the challenging co-parcener establishing

that the mortgaged property was joint family property, the claim for adverse possession is absolutely a misconceived one. It may be that the

mortgagee who advanced moneys under the two mortgages Exhibits B-230 and A-232 might have filed a suit and obtained a decree. But it is on a

misrepresentation that the mortgage was created and a decree has been suffered. That cannot be taken advantage of by a person who has no right,

title or interest over the same. We agree with the trial Court that defendants 17 and 18 were only in permissive possession of such lands and in the

absence of any acceptable material evidencing title in them over such lands, the cross-objections are without any substance and they are therefore,

dismissed.

All parties have agreed that the properties left by Pennan-II were Jus self-acquired properties. Obviously, this contention is based on the

proved fact that Pennan-II left the small extents of lands which he got from his father Pennan-I for the benefit of his two brothers Chinnan and

Vallian and was seeking his own livelihood and purchased properties by exercise of his volition, without prejudice to any ancestral property in his

hands. We shall therefore, proceed on the agreed assumption that all the properties left by Pennan-II were his self-acquisitions and at the time of

his death in 1906, Pennan-III, Vellian, father of the plaintiff at Anaikutti, father of defendants 8 to 11 were his undivided sons. The primary

question noted before us is:

When a Hindu father, who is joint and undivided with his sons at the time of his death dies, leaving self-acquired properties of his, in what manner

the sons who continued to be joint with him take that property?

Is it joint family property in their hands with all the incidents attached to such a concept or do they take it as tenants in common?

In spite of the enlightened cobwebs of orthodox Hindu Law having been shed by the introduction of the statute law in Hindu Succession Act of

1956, yet the law relating to joint family which is a peculiar doctrine amongst Hindus still shoots posers which are not easy of solution. The

peculiarity in Hindu Law is that the kith and kin of an owner of property acquired an interest in such property even before his demise. This is

adumberated in the principle of right by birth. Daya (heritage) in Hindu Law from hoary times has been classified under two heads

apratibandhadaya and Sapratibandha daya which expression to the extent possible has been translated in English as ''unobstructed heritage'' and

''obstructed heritage''. Unobstructed as the term itself connotes is an interest in praesenti and such an interest is attributed to his birth in the family.

The son, grandson and great grandson have such, vested rights by birth in the property of their father and their pitha maha (father''s father) and they

acquired an interest by birth in such property of their father and grandfather. The question is, if the property left by the father is his swayarjita or

self-acquired property, does the son acquire an interest in it by birth and incidentally therefore the question arises if there are more than one son,

who, at the time of the death of the father, are undivided, do they inherit the same or do they collectively take the property by survivorship by

reason of their birth and hold the same as joint family property amongst themselves. The Law of Succession amongst the Hindus, particularly, with

reference to the joint family property follows the nature of the particular property in question and the status of the person is sometimes not material

for consideration. The question whether the undivided sons of a Hindu father take his self-acquired property as tenants-in-common or as joint

tenants with rights of survivorship has to be necessarily decided by determining the nature and character of the property taken by them in their

hands. Godavari Lakshminarasamma Vs. Godavari Rama Brahman and Others, . We have referred to two kinds of Daya. The first heritage is

relatable to the right by birth which in Hindu Law is available to a son, son''s son and the son''s son''s son. In the second kind of Daya namely,

sapratibandha daya, the existence of the owner is a fundamental obstruction and the right of inheritance accrues only on the death of the owner.

Godavari Lakshminarasamma Vs. Godavari Rama Brahman and Others, . If therefore, the law of succession amongst Hindus would follow the

nature of incidence of the particular property, the necessary weightage has to be given and a dichotomy created in the case where undivided sons

of a father seek an answer to the quary whether they inherit the same or succeed to the same. If they inherit the same, then it would be a case of

sapratibandha daya. If they survive to the same as members of a co-parcenary, it would be a case of apratibandha daya. This distinction, in our

view, has to be borne in mind before we answer the question first formulated by us.

Mr. Kesava Iyengar in a lucid exposition of the intricacies of law of joint family separately relied upon the decisions reported in Viravan

Chettiar, represented by Ramasami Chettiar Vs. Srinivasachariar, , Katama Natchar v. Srimut Rajah Moottoo Vijaya Raghanandha Bodha

Gooboo Swamy Peria Odayar Taver (1861) 9 M.I.A. 539, Balwant Singh v. Rani Kishori ILR (1898) All. 267, Jogeswar Martin Leo v. Ram

Chandra Dutt ILR (1896) Cal. 670, Raja Chelikani Venkayamma Garu v. Raja Chelikkani Venkataramanayamma (1902) 29 I.A. 156: ILR

(1902) Mad. 678: (1902) 12 M.L.J. 299, AIR 1933 72 (Privy Council) , Bhagwan Dayal Vs. Mst. Reoti Devi, , Godavari Lakshminarasamma

Vs. Godavari Rama Brahman and Others, , Medai Dalavoi R. Ranganatha Mudaliar adopted son of Medai Dalavoi T. Ranganatha Mudaliar

through his father and next friend P.N. Sivasubramania Mudaliar Vs. M.D.T. Kumaraswami, Mudaliar and Others, . Contending equally with

falicity and force, Mr. M. R. Narayanaswamy would strongly rely upon a Full Bench decision reported in Mst. Ram Dei v. Mst. Gyarsi ILR

(1949) All. 160. and the ratio in Shyam Behari and Another Vs. Rameshwar Prasad Sahu and Others, , Nana Tawker v. Rama Chandra Tawker

ILR (1909) Mad. 377, Narasimham v. Narasimaham ILR (1932) Mad. 577: 62 M.L.J. 436: AIR 1932 Mad. 361, Fakirappa v. Yellappa I.L.R

(1898) . 22 Bom. 101, Ganesh Prasad v. Hazard. Lal ILR (1942) All. 759.

Whilst, Mr. Kesava Iyengar would contend that Pennan-III and his brothers who were admittedly joint with their father Pennan-II on the date

of his death, acquired those properties of Pennan-II as tenants in common, Mr. M. R. Narayanaswamy''s contention is that they took it as joint

tenants with rights of survivorship inter se.

For a digression which is necessary in this case, we have to remember the established rule of stare decisis which compels us to abide by well-

known precedents of the past instead of venturing to alter the same, Raghava Rao, J., in K. Peramanayakam Pillai Vs. S.T. Sivaraman and

Another, , while dealing with the rule explained it thus:

The rule of ''stare decisis'' only means that where a rule has become settled law it is to be followed although some possible inconvenience may

grow from a strict observance of it, or although a satisfactory reason is wanting, or although the principle and the policy of the rule may be

questioned.

It is also a guilding rule to Courts that when ''an ancient precedent which has stood the test of times for over fifty years is available, and that too in

the nature of a Full Bench decision of a particular High Court that should be the guiding factor to the Judges sitting in a Division Benchq and a

fortiori to a single Judge. Preferring the ratio of a Full Bench decided by a different High Court may border on impropriety. This rule of prudence

would naturally keep the scales of justice in the same Court steady and unwavering and make it not susceptible to private sentiments of a Judge,

human as he is. We have referred to the doctrine of stare decisis perfunctorily, since we are constrained to respect the decision of the Full Bench

of the Madras High Court reported in Viravan Chettiar, represented by Ramasami Chettiar Vs. Srinivasachariar, , rather than to accept the

principle laid down by the Full Bench of the Allahabad High Court in Mst. Ram Dei v. Mst. Gyarsi ILR (1949) All. 160, which is diametrically

opposite to the ratio in the first cited Full Bench decision. We shall now proceed to give our reasons.

Mitakshara explains the two terms apratibandha daya and spratibandho daya thus:

The wealth of the father or of the paternal grandfather becomes the property of his sons or of his grandsons, in right of their being his sons of his

grandsons; and that is an inheritance not liable to obstruction. But property devolves on parents or uncles, brothers, or the rest, upon the demise of

the owner, if there be no male issue; and thus the actual existence of a son, and the survival of the owner are impediments to the succession; and on

their ceasing, the property devolves on the successor in right of his being uncle or brother. This is an inheritance subject to obstruction.

It is undisputed, since it is not disputable, that the father in so far as his own property is concerned, has an unrestricted power to alienate the same

either testamentarily or otherwise, the son can project only a right in the nature of expectancy in the father''s self-acquisitions. It is in the nature of a

spes successionis. To adopt with respect the enlightened observations of Lord Macnaghten in Raja Chelikani Venkayyamma Garu v. Raja

Chelikani Venkataramanayamma (1902) 29 I.A. 156: (1902) 12 M.L.J. 299: ILR (1902) Mad. 678.

He is his father''s son and if his father does not dispose of it, it will come to him, but is it anything more than a spes.

The Allahabad High Court in another Full Bench decision reported in Ganesh Prasad v. Hazari Lal ILR (1942) All. 759. had to consider a similar

question. They observed:

On the death of a Hindu leaving self-acquired property the undivided sons succeed to such property to the exclusion of the divided son under the

Mitakshara Law.

Two of the learned Judges expressed the view that the undivided sons of a Hindu succeed to the self-acquired property of their father by

inheritance and not by survivorship. There was, of course, in the very same judgment a contrary view expressed by a learned single Judge on the

above question. In ''fact, one of the Judges of the Allahabad High Court referred to Venkayamma Garu v. Venkataramanayamma (1902) 29 I.A.

156: (1902) 12 M.L.J. 299: ILR (1902) Mad. 678, and made a pointed reference to the observation of the Law Lords in that case which reads

that ""the members of a joint family who succeed to self-acquired property, take it jointly"" and the learned Judge said that this is the same thing as

saying that they take the property by survivorship. The observations of Lord Justice Turner in Katama Natchiar v. The Rajah of Shivaganga

(1861) 9 M.I.A. 539, about the law of partition shows that as to the separately acquired property of one member of a Hindu family, the other

members of the family have neither community of interest nor unity of possession. Though the above observation might not have been quite

necessary for the decision in the above case (Katama Natchiar''s case (1861) 9 M.I.A. 539, yet such observations which are in the nature of

valuable propositions, though prima facie obiter dicta in nature, carry great weight. The Full Bench of the Allahabad High Court in Mst. Ram Dei v.

Mst. Gyarsi ILR (1949) All 160. was of the view that the self-acquired property of a Hindu father which his sons, who were joint with him, take

on his death, was in their hands joint family property and as between the sons and their descendants, it was subject to all the incidents of a

coparcenary is a dictum which we, with great respect, are unable to follow having regard to the contrary view expressed by our Court in Viravan

Chettiar, represented by Ramasami Chettiar Vs. Srinivasachariar, . With great respect to the learned Judges, who presided over the case in Mst.

Ram Dei v. Mst. Gyarsi ILR (1949) All 160. even the quotations in Mitakshara referred to by them do not fully support the conclusion. Dr. Sen

who pioneered the said view accepted by the learned Judges in the Full Bench case of Mst. Ram Dei v. Mst. Gyarsi ILR (1949) All 160. is

constrained to observe thus:

My conclusion, than, is, that the right which a son acquires by birth in his father''s property is not limited to ancestral property alone, but extends

over the entire property of the father, although the extent of the right is not everywhere the same but depends on the nature of the property.

The last portion of the opinion of Dr. Sen underlined by us creates doubt whether the principle propounded is of universal application. Even the

learned author Mayne touching on this aspect is rather vascillating. He would say:

The son''s right by birth does not, therefore, extend to his enforcing a partition or interdicting an alienation of his father''s property. The right,

however, remains a real birthright, though dormant, and enables the son to succeed to the property by survivorship as apratibandha daya.

With utmost respect to the learned author, we are still at pains to logically adopt the same for the reason that the son has no justifiable right over

the self-acquired property of his father when he is alive to seek for a share therein or interdict the father from in any way dealing with it to his

prejudice. So long as such a right of the son revolves round an air of expectancy rather than reality, we sustain the view that the undivided son''s

right over the self-acquired property of his father can only be as sapratibandha daya and not unobstructed heritage or apratibanda daya, as

apratibandha daya or unobstructed heritage is traceable to an existing right which in turn is relatable to the right by birth in the Hindu family. The

very fact that such a right is dormant during the life time of the father, completely buttresses the same and ultimately the undivided son or sons can

only inherit such self-acquired properties of their father as tenants in common with no rights of survivorship inter se as between them. The principle

of joint tenancy with rights of survivorship inter se is unknown to Hindu Law except in the case of joint property of an undivided family governed

by Mitakshara Law which under that law passes by survivorship. Vide Jogeswar Narain Deo v. Ramchandra Dutt ILR (1898) Cal. 670, AIR

1933 72 (Privy Council) and Bhagwan Dayal Vs. Mst. Reoti Devi, . It is no doubt true that if a father dies leaving separate property and also

leaves sons some of whom are divided from him and some remained joint with him, the undivided sons would exclude the divided sons, in the

matter of taking the self-acquired property of the father. (See Nana Tawker v. Ramachandra Tawker ILR (1909) Mad. 377, Chintapenta

Narasimha Rao Vs. Chintapenta Narasimham and Others, , Fakirappa v. Yellappa ILR (1898) 22 Bom. 101, Ganesh Prasad v. Hazari Lal. ILR

(1942) All. 759. But that does not necessarily mean that the undivided sons take the self-acquired property of their father as joint tenants. A

divided son severs his connection with the family and particularly, his father for all purposes. He takes his share in the ancestral property if any and

is not mindful of the expected share of his in the self-acquisitions of the father. At the time when he left the family and divided himself he had only a

right of expectancy in his father''s absolute properties. He voluntarily cut off that knot of expectancy and was prepared to surrender it, even though

it was not in reality a ripe right at that time. This is the basic truth behind the accepted principle that a divided son cannot claim any right in the self-

acquired property of the father along with the undivided brothers of his. This is understandable because no man can help one who does not want to

help himself. The divided son cuts himself off from the family and he cannot re-enter the same merely for purposes of aggrandizing himself to the

prejudice of those undivided sons who knit themselves with the father in filial bondage. We are unable to agree with Mr. M. R. Narayanaswamy

that as continuance in the coparcenary is the sine qua non to enable the undivided son to take the self-acquired property of the father of the

exclusion of the divided son, they should necessarily take it as coparceners and not as tenants in common. We have already categorically

expressed that the law of succession amongst Hindus follows the nature of the particular property in question and the status of the person is

immaterial. It, therefore, follows that the argument of Mr. Narayanaswami that is only their status at the time of the father''s death that would decide

the character of the estate is not acceptable to us. There is nothing inconsistent in our view to say that a divided son is excluded in the matter of the

share of the self-acquired property of the father whereas the undivided sons take the property not as coparceners inter se with rights of

survivorship but only as tenants in common. No doubt, Varadachariar, J., in Venkateswara Pattar (insane) and Others Vs. K. Mankayammal and

Others, , speaking for a Division Bench took a view that according to the scheme of Mitakshara Law, the succession of sons even in respect of

their father''s self-acquired properties is by survivorship. Though this decision was rendered 14 years after the decision of a Full Bench of our

Court in Viravan Chettiar, represented by Ramasami Chettiar Vs. Srinivasachariar, , yet this was not referred to. But on the other hand A. S.

Panchapakesa Ayyar, J., speaking for the Division Bench in Medai Dalavoi R. Ranganatha Mudaliar adopted son of Medai Dalavoi T. Ranganatha

Mudaliar through his father and next friend P.N. Sivasubramania Mudaliar Vs. M.D.T. Kumaraswami, Mudaliar and Others, . adopted the dictum

in the Full Bench in Viravan Chettiar, represented by Ramasami Chettiar Vs. Srinivasachariar, , and observed:

The Full Bench decision was delivered in 1921 and has never been dissented from by any decision of this Court or any other Court till now much

less overruled by the Supreme Court or the Privy Council. It has stood the test of 37 years and we are satisfied that it does not deserve to be

referred to a fuller Bench especially as we have absolutely no doubt regarding its correctness.

What is, however, urged before us is that the decision of the Full Bench of the Allahabad High Court in Mst. Ram Dei v. Mst. Gyarsi ILR (1949)

All. 160. followed the ancient text. As a matter of fact, Kaul, J., while speaking for the Full Bench in the Allahabad High Court said:

that the proposition that the sons of a Hindu though joint with him, acquired no interest in his self-acquired property by birth is opposed to the

express text of the Mitakshara and other Hindu books.

Our answer to this is found in the forcible observations of Rajamannar, CJ., in Lakshmi Narasamma v. Rama Brahmam (1950) 1 M.L.J. 350: ILR

(1950) Mad. 1084.:

However deplorable this may be we are at a stage when we are not free to go back to the law as enunciated and discussed in ancient books of

Hindu Law, untrammelled by judicial decisions. There can be no doubt that as between the original text and a decision of the Judicial Committee

we cannot choose to follow the former and refuse to be bound by the latter.

We add we cannot choose to follow the ancient text as was done by the Allahabad High Court and refuse to be bound by a Full Bench decision of

our Court reported in Viravan Chettiar, represented by Ramasami Chettiar Vs. Srinivasachariar, .

We have thus to fall back on the decision of the Full Bench of our Court in Viravan Chettiar, represented by Ramasami Chettiar Vs.

Srinivasachariar, , which clinches the issue in question. The main contention of the respondent in the Madras Full Bench case was that even though

the deceased father may have had absolute powers of disposal over the debt due to him, there is yet a coparcenary between himself and his

undivided sons, which operates to alter the character of the properties into coparcenary properties as soon as he dies and in such a case a son gets

it by right of survivorship. Reliance was placed upon the dicta in Nana Tawker v. Ramchandra Tawker ILR (1909) Mad. 377. and Fakirappa v.

Yellappa ILR (1898) 22 Bom. 101. It was in that context that Kumaraswami Sastri, J., who wrote the leading judgment in Viravan Chettiar,

represented by Ramasami Chettiar Vs. Srinivasachariar, , reiterated that the observation of the Privy Council in Balwant Singh v. Rani Kishori ILR

(1898) All. 267, was only a moral precept and not a rule of law capable of being enforced. The Full Bench referred to early rulings and accepted

also in principle that the son acquired no legal rights over his father''s self-acquisitions by reason of the text of Mitakshara. After accepting the

above dictum the Full Bench observed thus:

It is difficult to see how there can be any coparcenary between the father and the sons as regards self-acquired property over which the sons have

no legal claim or enforceable rights. Coparcenary and survivorship imply the existence of co-ownership and of rights of partition enforceable at

law, and a mere moral injunction can hardly be the foundation of a legal right.

Again quoting Sartaj Kuari v. Deoraj Kuari''s case ILR (1888) All. 272: 15 I.A. 51, the Full Bench of our Court noted with approval that 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. Undoubtedly, a son and in the instant case Pennan-III, and his brothers Vellian and Anaikutti did not have a right to

demand a partition from their father in regard to the self-acquired properties of Pennan-II. We are, therefore, of the opinion that as undivided sons

had only a bare expectancy and an imperfect or inchoate right over the self-acquired properties of their undivided father, they could only be heirs

under Hindu Law to such properties and they cannot claim heritage as if it was apratibandha daya. They had no right by birth nor is it contended

before us that they had any such right. We have to therefore necessarily follow the dictum in Viravan Chettiar, represented by Ramasami Chettiar

Vs. Srinivasachariar, , which is a direct decision which is binding on us.

We may also refer to a case of the Supreme Court reported in C.N. Arunachala Mudaliar Vs. C.A. Muruganatha Mudaliar and Another, ,

which reiterates the untrammelled power of the Mitakshara father to sell his self-acquired immovable property to a stranger without the

concurrence of his sons and make even unequal distribution amongst his heirs. Effectively, the principle in Viravan Chettiar, represented by

Ramasami Chettiar Vs. Srinivasachariar, , is assented to by the Supreme Court also by necessary implication. The net result of the discussion is

that we are unable to agree with Mr. Narayanaswamy that the three sons who are themselves members of a Hindu joint family inherited the self-

acquired property of Pennan-II and they took it as joint family property not merely between themselves and their sons but amongst themselves. On

the other hand, we are of the view that Pennan-III and his brothers took Pennan-II''s property as co-heirs under the law of inheritance and as

tenants in common. There is high authority for the proposition that coheirs take properties as tenants in common. Vide Khadeersa Hajee Bappu v.

Puthan Veettil Ayissa Ummath ILR (1911) Mad. 511: (1911) 20 M.L.J. 288 and Yerukola alias Pentajogulu (dead) 2 Ors. Vs. Yerukola alias

Penta Tatayya alias Purushottam and Others,

The only properties as admitted in this case were the self-acquired properties of Pennan-II which were inherited by Pennan-III and his

brothers as tenants in common and the other self-acquired properties of Pennan-III earned by him. Therefore, the only right of Pennan-III and his

brothers would be to get their share only in Pennan-II''s properties and the income therefrom. If it transpires that Pennan-III utilised any such

income in excess of his legitimate share, he would have to account for it to his other brothers. In the instant case there is no clear proof whether

Pennan-III utilised Pennan-II''s properties or the income therefrom to the prejudice of his brothers. This has to be established in the final decree

proceedings. If once it is proved that Pennan-III utilised Pennan-II''s properties for acquiring properties in his own name then the only right which

the brothers of Pennan-III and in this litigation the plaintiff and defendants 8 to 11 can claim would be to get their share of income so irregularly

utilised by the heirs of Pennan-III, who are defendants 1 to 7 and they cannot claim any share in the acquisitions made by Pennan-III in his own

name. This is because Pennan-III was only a tenant in common with respect to the properties of Pennan-II inherited by him as coheir with his

brothers. It is a matter of proof whether Pennan-III was in possession of more than one-third share of the properties left by Pennan-II and

Whether he used or utilised such excess share or other properties of Pennan-II or the income therefrom for acquiring properties of his own and in

his own name which was to the prejudice of the plaintiff and defendants 8 to 11. This is a matter again to be investigated in the final decree

proceedings.

The next incidental question which, arises for consideration is whether there has been a severance in status and a division as between Pennan-

III, Vellian and Anaikutti. Mr. Kesava Iyengar would fairly say that there is no clinching evidence as to the date and manner of the severance

amongst the co-tenants, but he would refer to a series of transactions indulged in by the three brothers which would conclusively establish that they

so conducted themselves as to give the impression to the outside world that they were independently enjoying the properties inherited by them

from Pennan-II and were treating those properties as their own with the concurrence of the other two, that one was treating the properties in his

possession as if they were his own and such dealings were other two. It is the common case of the parties before us that soon after the death of

before us that soon after the death of Pennan-II, Pennan-III, Vellian and Anaikutti were enjoying defined portions of the properties inherited by

them from Pennan-II and were either selling or mortgaging the same to the knowledge of all. Therefore, it is contended that no case of partition has

arisen, as each of the sharers was already in possession of definable properties of Pennan-II and in that sense, no occasion has arisen for a

preliminary decree for partition. We may at once state that no acceptable material has been placed before us to show that the three co-sharers are

in enjoyment of specific items of property left by Pennan-II. In this sense, therefore, a preliminary decree for partition cannot be avoided, even if

we accept the rather forcible argument on merits made by Mr. Kesava Iyengar. He has referred us to various documents under which the

borrowings were made by Pennan-III and contended that all the properties purchased by him were from extensive borrowings from third parties.

By way of elucidation, we shall refer to some of those incidents. Exhibits A-193, A-190, B-38, A-192, A-189, A-205, A-208 etc., show how

Pennan-III ws dealing with those properties. In the case of such dealings some documents such as Exhibits P-192, A-189, A-191, etc., are all

attested by Anaikutti. Some of the borrowings made by Pennan-III were discharged by Anaikutti himself, vide Exhibit A-121. In fact, the plaintiff

himself under Exhibit A-210 received money from Pennan-III and cancelled the debt due therein. Similarly Vellian had his own independent

transactions. Under Exhibit A-198, Vellian purchased properties. Under Exhibit A-200 Anaikutti sold some property to Vellian. Under Exhibits

A-204, A-211, A-212, A-213, etc. Anaikutti sold certain properties to the plaintiff himself. We have evidence on record to show that Anaikutti

had independently dealings by himself--vide Exhibit 219 etc. We have only illustratively referred to such transactions which are relied upon by Mr.

Kesava Iyengar to show that there has been a severance in status between Pennan-III and his brothers. He would ask us to consider the

cumulative effect of such dealings inter se as between the brothers and between the brothers and third parties. Reference is also made to the oral

evidence of D.W. 2 to sustain a case of severance. No doubt, there is abundant volume of evidence in this case both documentary and oral to urge

that the brothers were enjoying the properties of Pennan-II independently at least to some extent. But would that be sufficient to conclude that

there was severance as between themselves and that there has been a partition of properties by metes and bounds. We are afraid that we are not

in a position to opine that way. One significant'' factor in the course of this litigation was stressed before us to sustain the case of severance in

status. Reference is made to an earlier litigation between the parties in O.S. No. 13 of 1946 already referred to. The 12th defendant in O.S. No.

161 of 1965 was the plaintiff in O.S. No. 13 of 1946. Pennan-II and his three sons and others were parties to that litigation. The allegation was

that there was a severance in status. This suit was, however, ultimately withdrawn in 1949 under Exhibit B-272. What is urged before us is that by

merely asking for a partition, a member effects severance in status as between all the members in the joint family. Reliance is placed upon the

decision in Soundararajan v. Arunachalam ILR (1916) Mad. 159:. (1916) 29 M.L.J. 793. It is urged that the subsequent withdrawal cannot have

any effect in the disruption in status of the family. In this sense, therefore, Mr. Kesava Iyengar contends that there has been such a severance in

status. We should at once point out that the appellants were not able to point with any precision as to when exactly the severance in status, if at all

there was one, took place. We are not inclined to accept the broad proposition that notwithstanding the withdrawal of the suit O.S. No. 13 of

1946, still it should be held that the family has divided itself in all respects because one of the members of the composite coparcenary in which

Pennan-II was the head, filed a suit for partition and later withdrew it. The legal position relating to severance in status is by now well-established.

We are not in this case referring in detail to the voluminous exhibits in which Pennan-III, Vellian and Anaikutti and their respective heirs conducted

themselves in dealing with the properties in their possession. This is undoubtedly a case where Pennan-III, Vellian and Anaikutti domestically and

internally arranged to enjoy the properties of Pennan-II separately. But it is not clear from the evidence on record nor has it been brought home to

us as to what were the properties each of the sons of Pennan-II took after his death. The dealings would only show that there was a mixing-up of

the properties when it suited them. One brother was borrowing and the other brother was discharging the debt. In some cases one of the brothers

attested as a witness to the borrowings made by his brother. If at all there was a consistency, there was consistency in inconsistency. The

voluminous records produced do not give us a clear impression that there was a division by metes and bounds as between the brothers. As already

stated each was enriching himself by purchasing properties in their own name. Each was lending money and in turn borrowing moneys. Such an

admixture of events and citation of facts do not evidence an unequivocal intention or an explicit declaration either as such or by conduct to sever.

In order that conduct alone should be the sole criteria for a conclusion about severance, the Privy Council in Girja Bai v. S. Dhundiraj I.L.R

(1916) 43 . 151: (1916) 31 M.L.J. 455: 4 L.W. 114: AIR 1916 P.C. 104. said that the intention to separate maybe evinced in different ways

either by explicit declaration or by conduct and if it is an inference derivable from conduct, it will be for the Court to determine whether it was

unequivocal and explicit. There is no such clinching record or material for us to gain that impression. In Suraj Narain v. Iqbal Narain ILR (1913)

All. 80: 40 I.A. 40: (1913) 4 M.L.J. 345, once again the principle was reaffirmed that a definite and unambiguous indication by one of the

members of a joint family (may be tenants-in-common) is necessary to separate himself and to enjoy his share in severalty. But to have that effect

the intention must be unequivocal and clearly expressed. Separation from commensality does not as a necessary consequence effect a division.

Such intention should not be purely, subjective and exist in vacuum but should be made known objectively as Subba Rao, J., in Addagada

Raghavamma and Another Vs. Addagada Chenchamma and Another, , said:

The process of manifestation may vary with circumstances. What form that manifestation should take would depend upon the circumstances of

each case. Thus, the knowledge of the members of the family of the manifested intention of one of them to separate from them is a necessary

condition for bringing about that member''s severance from the family.

Vide also the decision in Puttarangamma and Others Vs. M.S. Ranganna and Others, . Though Mr. Kesava Iyengar was at pains to refer to the

various circumstances touching upon the conduct of the parties and said to be evidence of an unequivocal declaration on their part to sever and

separate, yet we are unable to comprehend such a situation. The conduct of the parties no doubt fairly touch upon their behaviour to separately

enjoy the properties which they inherited from Pennan-II. In what share they were enjoying is yet to be found. If ultimately, in the final decree

proceedings it is found that each of the sons of Pennan-II was enjoying fairly a third of the properties left by Pennan-II, then there may not be

much of difficulty, but if they were unequally enjoying their shares, then it has to be found whether Pennan-III or Vellian or Anaikutti benefited

themselves by causing a prejudice to the joint property. In any event however, the property purchased by Pennan-III or Vellian or Anaikutti in

their names, shall be their own properties subject however to accounting by them, if it becomes necessary to the other brothers in case they were

in enjoyment of properties in excess of their legitimate share. The properties in the name of Pennan-III shall be and ought to be accepted as his

own properties. As, in our view, the three brothers took Pennan-II''s properties as tenants-in-common and not as members of an undivided Hindu

family. The principle laid down in M. Cirimalappa v. R. Vellappagounda AIR 1959 S.C. 906. Mallesappa Bandeppa Desai and Others Vs. Desai

Mallappa and Others, . and a judgment of this Court in Kumaraswami Gounder and Others Vs. Subba Gounder and Others, , would not apply.

The case of the plaintiff and defendants 8 to 11 is that Pennan-III was in sole management of the entirety of the properties. Even if he was, it

cannot be said that he was in possession of those properties or any share in excess of his legitimate share as the ""manager of an undivided Hindu

family"". It may be that a co-owner was irregularly enjoying the property of another co-owner. As already stated by us, he would only be

accountable to the income ''from those properties enjoyed by him in excess of his legitimate share. Even if in the course of such enjoyment he has

purchased properties in his own name, they will be his self-acquisitions, but the only responsibility of his would be to shed the excess share of his

possession and account for its income to his other two brothers. Mr. Narayanaswamy''s contention is that applying the principles in the above

cases cited, the acquisitions made by Pennan-III should be equated to the accretions made by the manager of a Hindu undivided family.

This principle will not squarely apply to a case of co-sharers or co-owners. In the case of the three brothers in question, they had indisputably a

right over a third of the properties. By accident or by sufference or by consent, if Pennan-III or any one of the other brothers were in possession of

and in enjoyment of a share which is not equal to an one-third share of Pennan-II''s properties, they would only be surcharged for the corpus or

income which they enjoyed until a physical partition takes place. But their exertions which are independent as co-owners without reference to the

others cannot be said to be for the benefit of the other two owners. In this sense, therefore, the question as to nucleus, blending, throwing into the

common-stock etc., which would arise only in cases of acquisitions made by coparceners from and out of the income of coparcenary properties

when they remained joint do not arise and are not relevant for purposes of the present case. This is because, the case in question relates to

acquisition from and out of inherited properties held as tenants-in-common and not from coparcenary property held as joint tenants. The

adjustment of equities, therefore, should be made as indicated above.

The only surviving question is whether the suit is barred by limitation?

Here again we are unable to agree with Mr. Kesava Iyengar that the suit is barred by limitation. We have in the earlier portion of our judgment

expressed the view that in spite of voluminous evidence oral and documentary, there was no proof or clinching material aliunde to show that there

was a severance as between the co-owners in a realistic sense and that there was an equitable and equable division of their independent third share

amongst themselves and there was not even evidence to show that at any particular point of time any such declaration was made and expressly

communicated by one to the other so that an ouster of the same in relation to the properties held by the other two could reasonably be inferred.

We have also referred to the impact which the earlier 1946 suit had in the course of this litigation. O.S. No. 13 of 1946 was filed in which Pennan-

III and almost all the parties to the present action were parties, Pennan-III besides making assertions of severance and his independent title to all

his properties did not pursue his stand to the end and there was no real adjudication on the rights of parties excepting pleadings. No doubt the trial

Court rendered its judgment in O.S. No. 13 of 1946. But the main suit was withdrawn at the appellate stage. It is therefore, doubtful whether the

infructuous pleadings by themselves and the evidence let in that case to show that each of the brothers were dealing with the properties of Pennan-

II in their possession, as if it was their own cannot succinctly and pointedly lead to the conclusion that there was an assertion of hostile title by

Pennan-III, Vellian and Anaikutti, by one as against the other. It is only in cases of such proven ouster and established assertions of sole and

exclusive title and denial of title in others, the question of adverse possession can arise. If adverse possession is established and proved to the

satisfaction of Courts, then only Article 65 or Article 113 of the Indian Limitation Act would apply. The case before us could at best be illustrative

of the position that each co-owner was enjoying some portion of the joint properties whilst others were enjoying the other portions. At best it was

the result of a subjective domestic adjustment of rights. There is no showing that such enjoyment was by virtue of an agreement or a proved

understanding. Even in a case where a member of a Hindu family, who is divided in status from others is in enjoyment of some portions of the

family properties while others enjoy other portions he is not in law excluded or ousted from other portions so as to disentitle him to his share of

those portions however long their enjoyment by others. Kumarappa Chettiar and Others Vs. Saminatha Chettiar alias Avatha Chettiar and Others,

We are unable to find, nor is it seriously urged before us that Pennan-III or Vellian or Anaikutti were in exclusive possession of a defined or

identifiable portion of Pennan-II''s properties and that such possession was adverse to the other two brothers. Borrowings made to the knowledge

of others or dealings inter se between the brothers or evidence of mutation proceedings or proceedings for mutation of names have to be

understood as an understanding conduct as between the brothers without any legal implications thereto and such domestic adjustment or rights in a

family forum cannot be the sole criteria for deciding legal rights and particularly on a question whether the suit laid by the plaintiff and consented to

by some of the defendants is barred by the statute of limitations. In fact, in Nirman Singh v. Rudrapratap Narain Singh (1926) 51 M.L.J. 836: 25

L.W. 1: 53 I.A. 220: AIR 1926 P.C. 100, the Privy Council characterised proceedings for mutation of names as not a judicial proceeding in which

the title to and the proprietory rights in immovable property are determined, but are more in the nature of physical enquiries instituted in the interest

of the State for ascertaining which of several rival claimants to the occupation of movable property may be placed in possession of it with greater

probability that the Revenue will be duly paid. Even so, the illustrative examples referred to by us earlier out of the many transactions quoted

before us by Mr. Kesava Iyengar which in turn refers to the dealings which each of the brothers had either independently or in conjunction with

one another cannot be misunderstood as conduct which reflects upon the title of each of the brothers over the respective properties dealt with by

them. At best they have persuasive value but by themselves cannot be conclusive of title and evidence of ouster or adverse possession. AIR 1931

48 (Privy Council) . cited by Mr. Kesava Iyengar to support his plea that the suit is barred by limitation presents a different set of facts. There it

was satisfied beyond doubt that the possession of one of the owners was adverse for more than the statutory period with reference to the other

co-owners. In fact, there was evidence in that case that'' one co-owner did not have possession or participation of profits in the properties for

more than the statutory period and that in spite of knowledge that such properties in which he had an interest were adversely being enjoyed by

others, the affected party kept quiet. It was in those circumstances, the Privy Council in AIR 1931 48 (Privy Council) held that the possession of

one party was adverse to the others. But in our view there is no such clinching evidence in this case. The case reported in Parbati v. Naunihal Singh

ILR (1908) All. 412, relied upon by Mr. Kesava Iyengar was also a case in which the members of a Hindu family agreed that the joint property

should be held and enjoyed by the various members of the family in certain defined shares which they specified in writing in public record. It was in

those circumstances, the Court held that the transactions and conduct of the members of the family with respect to the management of the property

had been on the basis that it was held in separate shares from that time. We have expressed the view that the cumulative effect of all the

transactions had when Pennan-III was alive and which had a relevant impact upon the conduct of Vellian and Anaikutti, as also the conduct of the

three co-owners could not have been on the basis that there was any agreement on the basis of which they were in possession of defined shares in

the properties of Pennan-II. The position of each of the brothers was as a result of a mutual unwritten understanding and this does not effectively

give out to the outside world that such possession of their properties sprang from a mutual final adjustment of rights. There is no proof excepting

the suit of 1946 which was later on withdrawn that there was ever a demand and a refusal to account by one to the other. The cause of action

prior to the institution of the present suit did not come into being earlier. So the period of limitation cannot run until the cause of action arose. In our

view, the cause of action arose for the first time on the institution of the present suit. In the ultimate analysis we are unable to find that anyone of the

brothers was ousted or excluded from the joint properties so as to allow the law of limitation to operate. We agree with the Court below that the

suit is within time.

The result of our discussion as above could be summarised thus:

The plaintiff is granted a declaration that he is entitled to a one-third share in the properties left by Pennan-II.

If it is found in the course of the final decree proceedings that either Pennan-III and his branch or Vellian and his branch were in possession of

properties in excess of one-third share in Pennan-II''s properties, they would have to shed the same and account for mesne profits in respect of

such excess of properties in their possession, to the plaintiff.

In so far as the properties standing in the name of Pennan-III or Vellion or Anaikutti they shall be their respective self-acquired properties and

shall be considered as such.

There is no positive proof that there has been a severance in status or an effective division as between the co-owners, namely, Pennan-III,

Vellian and Anaikutti and the evidence on record either independently scrutinised or cumulatively considered does not give such an impression.

In so far as the will Exhibit A-168 executed by Pennan-III is concerned, it would be valid and enforceable as regards his own properties

acquired by him and also in so far as they relate to the properties acquired by Pennan-III after the death of Pennan-II, as in our view would be his

self-acquired properties and in consequence he would have a valid disposing power over them.

We find, as already stated, that the suits are within time.

A preliminary decree for partition is, therefore, passed in favour of the plaintiff declaring his right over the one-third share in the properties of

Pennan-II and in so far as the accounting portion inter se as between the parties is concerned, it is relegated to the final decree proceedings.

We shall now take up O.S. No. 124 of 1964 against which A.S. No. 141 of 1972 arises. This is a suit in which the sons of Pennan-III through

his second wife are fighting the sons of Pennan-III through his first wife. The plaintiffs in this suit are defendants 4, 5, and 6 in O.S. No. 161 of

1965. The defendants in this suit are defendants 1, 2 and 3 in that suit. The plaintiffs alleged that the properties described in Schedules A to E are

the self-acquired properties of Pennan-III and they were acquired by him as his absolute property by his own exertions without'' reference to the

joint family property or income. According to them Pennan-III executed a will Exhibit A-168 bequeathing the suit properties in favour of the

plaintiffs and the defendants in equal shares and though each of them was enjoying the properties separately by mutual consent and agreement, yet

the first defendant in this suit has unauthorisedly interrupted the possession of the plaintiffs and was enjoying the income of all the properties to the

prejudice of the plaintiffs and it has, therefore, become necessary for them to sue for partition and separate possession of their one-half share in the

suit property. Later on they included the properties set out in Schedule A-1, B-1, C-1, D-1, and E-1. In so far as these properties are concerned,

the plaintiffs'' case is that they are joint family properties in which the plaintiffs and defendants are both entitled to a one-third share and the plaintiffs

alone being entitled to one-sixth share. The defendants denied that the suit properties as originally contained in the plaint are the self-acquired

properties of their father. They would set up a case of blending of the properties acquired by Pennan-III from Pennan-II and that all the suit

properties included in Schedules A to E and A-1 to E-1 are joint family properties and that a division if at all has to be made in that light. As in the

view of the defendants in this case the properties are all joint family properties, the will as such is unenforceable. In so far as the rest of the

pleadings are concerned the defendants'' case is that there was always an undivided joint Hindu family and the rights of parties had to be worked

out in that light. Thereafter, the pleadings in O.S. No. 161 of 1965 which have already been set out, are repeated by the defendants.

The learned trial Judge in view of his findings earlier held that the will Exhibit A-168 is unenforceable in all respects. He also held that the

parties agreed that there was no E Schedule property. He rendered a judgment in accordance with his findings as above.

But in view of a partial modification of the judgment of the trial Court in the light of our discussions in A.S. No. 142 of 1972, we modify the

judgment of the Court below in O.S. No. 124 of 1964 as under.

As there was no argument before us about the validity of the will Exhibit A-168 it is upheld. We hold that Exhibit A-168 will be operative not

only as regards the properties which Pennan-III would acquire as per our decision in O.S. No. 161 of 1965 which is a one-third share in Pennan-

III''s properties, but also with reference to the properties which he purchased and acquired in his own name after the death of Pennan-II. We also

pass a preliminary decree for partition as prayed for by the plaintiffs in respect of their one-half share in such properties as per the directions in the

will and relegate the parties in respect of the accounting of the mesne profits therefrom in the final decree proceedings.

In the result, therefore A.S. No. 141 of 1972 and A.S. No. 142 of 1972 are allowed in part and a preliminary decree shall issue in each of the

cases as per our judgment above. All the parties both in the Court below and before us shall bear their own costs and such costs shall come out of

the estate.

The cross-objections filed by the legal representatives of defendants 17 and 18 stand dismissed and there will be no order as to costs.

These appeals and the memorandum of cross-objections having been set down this day for being mentioned, the Court made the following

order:

The Order of the Court was made by the Hon''ble the Chief Justice:

Learned Counsel appearing before us agree that as no orders have been passed apparently by inadvertance in C.M.P. No. 9232 of 1977,

which was an application to bring on record the legal representatives of the deceased 13th respondent, it has to be ordered. Accordingly, the said

C.M.P. No. 9232 of 1977 is ordered as prayed for.

As regards the cross-objections in A. S. No. 141 of 1972, counsel agree that in view of the judgment already rendered by us it has to be

dismissed, and the cross-objections filed in A.S. No. 142 of 1972 has to be allowed as this result follows from the judgment.

Ordered accordingly.