P. PERJASAMI (DEAD) BY LRS. ETC.versusP. PERLATHAMBL AND ORS. ETC.

A                   P. PERJASAMI (DEAD) BY LRS. ETC.
                                         I'.

                      P. PERlATHAMBl AND flRS. ETC.

                               OCTOBER ll, 1995

B            [M.M. PUNCHHl AND SUJATA Y. MANOHAR, J.T.J

          Hindu Law :

          Self-acquired prope11y of a male Hindu, dying intestate-Devolution
C of-Elder of pa11ies swvived by sons but no grandsons-Subsequent/)' accre-
  tions 111ade to descended ;1ro11e1ty out of incon1e received fronz it-Suit for
  pm1ition of descended propC11y as also vf accretions-Held, the descended
  prope11y came in possession of the sons by inlwitance, tlzeir status being that
  of tenants-in-conunon-Accretions n1ade out of incon1e froni joint prope1ty
  were not joint Hindu family prope1ty and were accountable-Plea of adverse
D possession rejected.

          'A', a common ancestor of the parties, died leaving behind certain
    self-acquired agricultural lands. He was survived by three sons bqt no
    grandsons. The said properties came in possession of his three sons. As
     the branches of 'A's sons grew \vith passage of time, some more properties
E
   were said to have been purchased out of the income derived from the
   descended properties. Later, a suit for partition came to be filed between
   the branches of two sons of 'A' alleging that the properties received from
   'A' and the accretions made thereto out of the funds derived from the
   descended properties, both were joint Hindu family properties. The deten-
F dants also claimed the deccnded properties as joint Hindu family proper-
   ties, but refuted that 'A' and his three sons were members of joint Hindu
   family. They contended that the properties of 'A' came to his three sons by
   way of inheritance and not by survivorship, and, therefore, the accretions
    to the properties could not be related to the nucleus owned by joint Hindu
    family so as !<~ partake the character of joint Hindu family property. The
G
    defendants claimed that the accretions where their personal accumula·
  _ lions; or, in. the alternative they \\'ere in adverse possession thereof. The
    parties ultimately filed the three appeals before this Court against the
    judgment of the High Court in civil appeals and cross-objections.

H          On the question : whether under Hindu law self-acquired property
                                      230
                     P. PER!ASAMI v. P. PERIATHAMBI                           231

of a fµther goes, on his death, to his sons, in absence of grand-sons, in a          A
,j<!in,~ f"rriily way in, jo~µ~ ~enancy, or does it descend by inheritance to them
~i, shares as tenants-in-coll!rµon.


      Dismissing the appeals, this Court

       HELD: 1. The self-ac<1uired properties left by 'A', the common ances-         B
tor, there being no grandsons of'A' at the time of his death, cannot be held by
the two branches as joint Hindu family properties because the three sons of
'A' obtained it by inheritance and their status was that of tenants-in-com·
mon; and if accretions to the said properties had been made out of the
income of the joint property, then these were accountable. (235-C-D]
                                                                                     c
      Viravan. Chettiar v. S1inivasachaiiar, AIR (1921) Madras (Vol. 8) p.
168, approved and reiterated.

      Mst. Ram Dei v. Mst. Gym,;, I.L.R. (1949) Allahabad 150 = AIR
(1949) Alt. 545, cited.                                                              D
       2. The finding recorded by the High Court that the defendants have
failed to prove that the accreted property was in their adverse possession,
is a finding of fact, which need not be disturbed. In a plea of adverse
possess~on it is inherent that someone else was the owner of the property.
The failure of the plea has obvious results. (235-E)                                 E
      3. If the parties herein were co-owners of the property and the said
property had been purchased from the income derived from joint property,
then obviously the same has to be accounted for as joint property and not
as joint Hindu family property. It was like property jointly purchased by
co-owners without attracting the rule of succession by way of su·rvivoi-ship.        F
With this clarification the little vagueness about this particular in the
judgment of the High Court is cleansed. (235-F]

      CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 1965-66
of 1980 Etc.                                                                         G
     From the Judgment and Order dated 11.1.79 of the Madras High
Court in A.S. Nos. 141 & 142 of 1972.

    R. Sundara Varadhan, A.T.M. Sampath, P.N. Ramalingam, Ms. N.
Annapoorani, S. Srinivasan and R. Ayyam Perumal for the appearing                    H
    232                   SUPREME COURT REPORTS [1995[ SUPP. 4 S.C.R.

A   Parties.

          The following Order of the Court was delivered :

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

          It was a suit for partition between two branches of the same family.
    The properties involved were entirely agricultural. The facts as depicted in
    the judgment of the High Court are so interwoven with so many <letails
C   that we have thought it expedient to resort to tremendous shrinking. For
    our purpose, we condense them to say, sufficedly, that there was an elder,
    high in the line, _who owned these properties. These were self acquired.
    When he died years ago, he left behind three sons. He had by then no
    grand-sons born from the loins of those three sons. The property on his
D   death thus came in possession of the three sons. When eventually sons were
    born to those sons and thereafter grand-sons, there came a day when they
    sought to effect a partition. In this spell of time certain properties allegedly
    stood purchased out of the income derived from those properties and they
    were also brought in, being within the nucleus and hence claimed to be
    partible. It is in this manner that the dispute was spread within the two
E   branches of the family representing lines of two brothers. The plaintiffs
    claimed partition on the basis that the propertiec received from the family
    elder and the accretions made thereto from the income derived from the
    said property, were both joint Hindu family properties and out of which
    they were entitled to their defined shares. On the other hand, the defen-
F   dants joined issue with the plaintiffs, on the question of the descended
     properties being joint Hindu family properties, taking the plea that the
     properties had come from the elder to his three sons by way of inheritance
    and not on basis of survivorship. The assumption that those three sons and
    the elder were members of a joint Hindu family was refuted. As a conse-
    quence, it was pleaded that the so-called accretion to the properties could
G   not be related to th_e nucleus factually, as also because unless it could be
    proved that the nucleus was owned by the joint Hindu family, the accre-
    tions could not partake the same character. Further, it was pleaded that
    these accretions were personal accumulations of the defendants and in case
    it was not so proved, they were in adverse possession thereof, for which
H   they sought a declaration. This in nutshell is the dispute which is before
                    P. PERIASAMI v. P. PERIATHAMBI                         233

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

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

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

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

        is only a n1oral precept and not a rule of law capable of being           F
        enforced. As pointed out in Madan Gopal v. Ram Buksh, (1863)
        6 W.R. 71 andlugmolwndas Manga/adas v. Sir Manga/doss Nathub-
        hoy, (1889) 10 Born. 528 the son acquires no legal rights over his
        father's self-acquisitions by reason of the text of the Mitakshara
        (Ch. I, Ssl, 27) but that his right Is imperfect one incapable of         G
        being enforced at law.

            It is difficult to see how there can be any co-parcenmy between
        the father and the sons as regards self-acquired pro1Je1ty over 1-vhich
        the sons have no legal clain1 or enforceable lights. Co-parcena1y and
        siuvivorship i111ply the v.:istence of co-ownership and of 1ights of      H
    234                   SUPREME COURT REPORTS [1995] SUPP. 4 S.C.R.

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

                                                      (Emphasis supplied by us)


F          Contrary vic\VS have been expressed in A1st. Rant Dei v. /\1st. Cyarsi
    T.L.R. 1949 Allahabad 150 = A.LR. (1949) Allahabad 545 (F.B.) and many
    other cases to which reference need not be made. In AIR (1959) Madras
    253, however, occasion arose to reconsider the above-referred to view of
    the Full Bench of the Madras High Court, but the learned Judgcs refrained
    from doing so for by then the Full Bench case of 1921 had been treated as
G   stare decisis. Likewise after a lapse of more than half a century, \Ve \vould
    not consider it prudent, just for the sake of uniformity to resolve the
    conflict raging in the High Courts on this question, more so when the
    orthodox Hindu Law on the subject is itself now in tumble because of the
    enactment of the Hindu Succession Act, 1956 and in particular of Section
H   19 thereof, which says that if two or more heirs succeed together to the
                   P_ PERIASAMJ ""- p_ PERIATl-IAMBI                      235

property of an intestate they shall take the properly -                          A

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

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

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

      For what we have said above, it is plain that the property in posses-
sion of these two branches of the family, sought to be partitioned, was not
joint Hindu family property because the three sons obtained it by in-
heritance from their father, the last elder, and their status was that of H
    236                 SUPREME COURT REPORTS (1995] St.:PP. 4 S.C.R.

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

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

    R.P.                                                 Appeals dismissed.