Ranganatha Naidu vs Balaram Naidu and others

Suryamurthy, J.—This is an appeal by the plaintiff against the judgment of the learned Subordinate Judge of Kancheepuram in O.S. No. 10 of 1969 on the file of his Court. The suit was instituted for partition of the properties described in several schedules, and the learned Subordinate Judge granted a preliminary decree for partition and separate possession of 1/6th share of the plaintiff in A, B schedule part III items 2 and 3, D schedule and I schedule and 1/3rd share, of the plaintiff in B schedule part II, part III item No. 1, C Schedule parts I and II, C schedule part VII and E schedule part VI except items 3 to 7, 13, 14, 55, 57, 58, 73 and 74 purchased by 63rd defendant in Court auction. He dismissed also the rest of the claim of the plaintiff with a direction that the contesting defendants could recover their proportionate costs from the plaintiff. The properties in respect of which the plaintiff''s claim was dismissed, were the properties that devolved on defendants 1 and 3 from their maternal grandfather. These items were sold by defendants 1 and 3 under Exs.B1, B4, B5 and B8 to the contesting defendants as well as some of the defendants who have chosen to remain ex parte.

In AIR 1937 233 (Privy Council) , the Privy Council held that the estate which was inherited by the father from his maternal grandfather cannot be held to be ancestral property in which his son has interest jointly with him. In that case, it was contended that the property inherited by the daughter''s son from his maternal grandfather is ancestral property, and in support of this contention, reliance was placed upon the expression ''ancestral property'' as used in the judgment of the Privy Council in Chalikani Venkayyamma Garu v. Chalikani Venkataramanayyamma 29 I.A. 156 : 25 Mad. 678 : 12 M.L.J. 2998 Sar. 216 (P.C.), in describing the property which had descended from the maternal grandfather to his two grandsons. The Privy Council observed that

the grandsons referred to in that case were the sons of a daughter of the propositus, and constituted a coparcenary with right of survivorship. On the death of their mother they succeeded to the estate of their maternal grandfather, and continued to be joint in estate until one of the brothers died. There upon, the widow of the deceased brother claimed to recover a moiety of the estate from the surviving brother. The question formulated by the Board for decision was whether the property of the maternal grandfather descended on the death of his daughter, to her two sons jointly with benefit of survivorship, or in common without benefit of survivorship. This was the only point of law which was argued before their Lordships, and it does not appear that it was contended that the estate was ancestral in the restricted sense in which the term is used in the Hindu Law. Their Lordships decided that the estate was governed by the rule of survivorship, and the claim of the widow, was, therefore, negatived. The brothers took the estate of their maternal grandfather at the same time and by the same title, and there was apparently no reason why they should not hold that estate in the same manner as they held their other joint property. The rule of survivorship, which admittedly governed their ancestral property was held to apply also to the estate which had come to them from their maternal grandfather. In these circumstances, it was unnecessary to express any opinion upon the abstract question of whether the property, which a daughter''s son inherits from his maternal grandfather, is ancestral property in the technical sense that a son acquires therein by birth an interest jointly with him. This question was neither raised by the parties not determined by the Board. It appears that the phrase ''ancestral property'' upon which reliance is placed on behalf of the appellants, was used in its ordinary meaning, viz., property which devolves upon a person from his ancestor and not in the restricted sense of the Hindu Law, which imports the idea of the acquisition of interest on birth by a son jointly with his father.

There are, on the other hand, observations in a later judgment of the Board in Atar Singh v. Thakar Singh 1910-42 P.R. 1910=34 Cal. 1039 : 6 I.C. 721 : 35 I.A. 206 (PC) which are pertinent here. It was stated in that judgment that unless the lands come by descent from a lineal male ancestor in the male line, they are not deemed ancestral in "Hindu Law." This case, however, related to the property which comes from male collaterals and not from maternal grandfather; and it was governed ''by the custom of the Punjab''; but it was not suggested that the custom differed from the Hindu Law on the issue before their Lordships. The rule of Hindu Law is well settled that the property which a man inherit from any of his three immediate paternal ancestors, namely, his father, father''s father and father''s fathers father is ancestral property as regards his male issue and the son acquires jointly with him an interest in it by birth. Such property is held by him in coparcenary with his male issue and the doctrine of survivorship applies to it. But, the question raised by this appeal is whether the sons acquire by birth an interest jointly with his father in the estate, which the latter inherits from his maternal grandfather. Answering this question the Privy Council held that The word ''ancestor'' in its ordinary meaning includes an ascendant in the maternal as well as the paternal, line; but the ''ancestral'' estate in which under the Hindu Law, a son acquires jointly with his father an interest by birth must be confined as shown by the original text of the Mitakshara, to the property descending to the father from his male ancestor in the male line. The expression has sometimes been used in its ordinary sense, and that has been the cause of misunderstanding. The estate which was inherited by Ganesh Prasad from his maternal grandfather cannot in their Lordships'' opinion be held to be ancestral property in which his son had an interest jointly with him. Ganesh Prasad consequently had full power of disposal over that estate and the devise made by him in favour of his daughter-in-law, Giri Bala, could not be challenged by his son or any other person."

The ratio decidendi of AIR 1937 233 (Privy Council) was followed by a Bench of this Court in Godavari Lakshminarasamma Vs. Godavari Rama Brahman and Others, and again by a Full Bench of this Court in the Commissioner of Gift tax, Madras v. P. Rangasami Naidu. Therefore, the plaintiffs cannot claim any right by birth in the properties of his father.

It is now contended by the learned counsel for the appellant that the first defendant had blended the properties in dispute with his ancestral properties by throwing them into the common stock with the intention of abandoning his separate claim thereto and that consequently the plaintiff has acquired a right by birth in them.

There is no evidence in support of his contention. The first defendant, who is obviously colluding with the plaintiff and who had entered into a compromise with the plaintiff before the trial of the case commenced, has not been examined as a witness to prove his intention. On the other hand, the very fact that he alienated these properties would show that he had no intention of admitting the plaintiff to the enjoyment of these properties or any part thereof. The mere fact that so long as the properties were owned by the family, the plaintiff also enjoys the income therefrom, will not be sufficient to infer an abandonment by the first defendant or an intention on his part to throw these properties into the hotchpot and treat them as joint family properties. The evidence of P.Ws. 1 to 3 in support of the case of the plaintiff is thoroughly artificial and even if accused in toto would not prove an intention on the part of the first defendant to waive his right in the suit properties which were his separate properties having been inherited by him from his maternal grandfather, over which be had absolute power of disposal. Therefore, the plaintiff cannot impugn the sale deeds in respect of the maternal grandfather''s properties, and the suit for partition of the same was rightly dismissed by the learned Subordinate Judge. Hence, this appeal is dismissed with costs.