Vishweshwarlal vs Bhuramal and Another

P.N. Shinghal, J.—The plaintiff-appellant feels aggrieved by the appellate judgment of the District Judge of Bikaner, dated November 13, 1961, by which his suit has been dismissed

The facts are quite simple and are not in dispute. Kistoorchand had two sons, Bhuramal and Manmal, who an- the defendants-respondents. The plaintiff obtained a decree against Manmal and, in execution thereof, he secured the attachment of Manmal''s share in the suit house. Bhuramal objected to the execution of the decree and his objection was upheld. The decree-holder raised a suit under Order 21, Rule 63 of the Code of Civil Procedure, and it is this suit which has given rise to the present appeal. It was claimed in the suit that the house belonged to Kistoorchand and that Manamal had a half share in it which was liable to attachment and sale in execution of the decree against him. That claim was resisted by Bhuramal on the ground that Manamal had separated himself from the joint family in the life-time of his father Kistoorchand under document Ex. A/2 dated July 10, 1936. The document was registered and under it Manmal relinquished his share in the suit house in favour of his father Kistoorchand, because he wanted to make sure that he was not held liable in the pending and future litigation against Kistoorchand who, it is admitted, was under a huge liability. These facts were not disputed, so that the important fact that Manmal had separated from his father during his life-time in 1936 was also not disputed. So also, it was not disputed that Kistoorchand died before the coming into force of the Hindu Succession Act, 1956.

The short question which therefore arose for decision was whether, on the above agreed facts, Manmal got any share in the suit house after the death of his father Kistoorchand. The trial court held that Manmal''s one-third share in the suit house, which he relinquished under document Ex. A/2, became the separate property of his father Kistoorchand by virtue of the separation of Manmal and his voluntary relinquishment of his share in the suit house and that it devolved by inheritance and not by survivorship on the death of Kistoorchand, so that Manmal got one-sixth share in it. That court therefore held that share of Manmal to be liable to attachment and sale, and decreed the suit. An appeal was preferred by Bhuramal to the Court of District Judge, Bikaner. The learned District Judge held that the trial court had committed an error in basing its judgment on the view taken in AIR 1930 77 (Oudh) and that Manmal''s share in the suit house, which was received by Kistoorchand by virtue of document Ex. A/2, fell to the share of Bhuramal even though it had to be treated as Kistoorchand''s self-acquired property, because of the fact that Bhuramal continued to live as a member of Kistoorchand''s joint Hindu family while Manmal separated from it. The short question before me is whether this view of the court of first appeal is correct.

Mr. Chhangani has argued that as Manmal''s one-third share in the suit house became the self-acquired property of his father Kistoorchand when Manmal separated himself from the joint Hindu family and gave away his share to his father, that separate property of Kistoorchand devolved on his two sons Bhuramal and Man Mal by inheritance and not on Bhuramal alone by survivorship. The learned counsel, in this connection, placed reliance on paragraph 222 of Mulla''s "Principles of Hindu Law," thirteenth edition. In that paragraph, while dealing with the incidents of separate or self-acquired property of a Hindu, the learned author has made an observation to the following effect:

"A Hindu, even if he be joint, may possess separate property. Such property belongs exclusively to him. No other member of the coparcenary, not even his male issue, acquires any interest in it by birth. He may sell it, or he may make a gift of it, or bequeath it by will, to any person he likes. It is not liable to partition, and, on his death intestate, it passes by succession to his heirs, and not by survivorship to the surviving coparceners."

It would thus appear that the above observation has been made on the assumption that no membei of the coparcenary, not even a male issue, acquires any interest in the separate property of a Hindu by birth. With all respect to the learned author, this observation is not quite correct and I can do no better than refer to the following observation of their Lordships of the Supreme Court in C.N. Arunachala Mudaliar Vs. C.A. Muruganatha Mudaliar and Another,

"It is undoubtedly true that according to Mitakshara, the son has a right by birth both in his father''s and grand-father''s estate, but as has been pointed out before a distinction is made in this respect by Mitakshara itselt In the ancestral or grandfather''s property in the hands of the father, the son has equal rights with his father; while in the self-acquired property of the father, his rights are unequal by reason of the father having an independent power over or predominant interest in the same."

It would thus appear that the observation in paragraph 222 of Mulla''s Hindu Law is not quite correct. It appears to have been made with reference to the power of the father to sell or gift away his separate property or to bequeath it by a will, and it cannot be said that the learned author was of the view that the undivided son has no interest, by birth, in the self-acquired property of his father, so as to make a divided son eligible to its inheritance on the father''s death. I may, in this connection, refer to paragraphs 43 (iii) and 341 of Mulla''s Hindu Law which makes the position quite clear.

At any rate, as it is well settled that a son has a right by birth in his father''s self-acquired property, that property would go to the undivided son to the entire exclusion of the divided son, because the divided son had ceased to have any interest in it on partition or separation As the father was joint with one son, the ancestral and self-acquired property of the father belonged to the ioint family and on the death of the father there could therefore be no question of his separated son getting any share in it. This is the view taken in Mt. Ram Dei Vs. Mt. Gyarsi and Others, with which I am in respectful agreement. Reference in this connection may also be made to (Chintapenta) Narasimha Rao v. Nara-simham AIR 1932 Mad 361 and Vasudeo Ganesh Kulkarni Vs. Vishwanath Shripad Kulkarni, . The decision in tht AIR 1930 77 (Oudh) on which reliance has been placed by the trial court is no longer good law in view of the Full Bench decision in Mt. Ram Dei v. Mt. Gyarsi, referred to above.

It would thus appear that the learned Judge of the lower appellate court was quite correct in taking the view that Manmal had no interest in the suit house and in dismissing the suit.

The appeal fails and is dismissed, but there will be no order as to costs in the circumstances of the case.