Collister, J.@mdashThe following question of law has been referred to this Full Bench:
On the death of a Hindu leaving self-acquired property, do the undivided sons succeed to such property to the exclusion of the divided son under
the Mitakshara law?
2. There is a sharp conflict of opinion between the High Courts of Bombay and Madras on the one hand and the Chief Court of Oudh on the
other. There is also an old case from Calcutta dating back to 1820, which I shall mention first. In Macnaghten''s Principles and precedents of
Hindu Law, Vol. II, in the chapter headed ""Inheritance"" we have the following question put to the Law Officers in case No. XII of 1820:
A person having assigned a moiety of his self-acquired landed estate to his� Separated himself from them, and with the other half continued to
live in a state of union with his son by another wife. On the death of the father, are the sons entitled to an equal portion of the estate left by him?
3. The answer was in the following terms:
Under the circumstances stated the disposition of the estate made by the father will hold good, if not made through perturbation of mind
occasioned by disease or the like, or through irritation against any one of his sons or through partiality for the child of a favorite wife, in either of
which case each of his sons would be entitled to an equal share of the estate; otherwise on his death the son who were separated from him during
his lifetime have no claim to the inheritance.
4. In Fakirappa v. Yellappa (1896) 22 Bom. 101, it was held that as between united sons and a separated grandson the succession on the grand
father''s death, to the self-acquired property left by him goes in preference according to Hindu Law, to the United sons. In that case the property
was apparently acquired before partition. At page 103 Ranade, J. says:
The succession of the male issue is by right of survivorship to joint estate and must be confined to sons who are united co-parceners and cannot
include the Appellant who is separate from the grand father and the uncles. In the case of a joint succession the sons succeed by survivorship and
sons who have separated from their father and his family are passed over in favour of sons who have remained united with him west and Buhler, p.
68.
5. At page 104 this same learned Judge observes:
The succession to a joint estate goes by survivorship to the coparceners and the separated grandsons cannot be regarded as coparceners with the
grandfather at the time of his death.
6. Further on he says:
A partition once made must be presumed to be final and complete. To hold otherwise would be to open the door to a flood of litigation, for in
every case a separated son can always put forth the suggestion that a portion of his father''s property was self-acquired.
7. At page 105 Jardine J. expresses the opinion that the claim of the separated grandson was
contrary to the spirit and presumptions of the Hindu Law.
8. This decision was followed in Nana Tawker v. Ramachandra Tawker (1908) 32 Mad 377 : 2 IC 519, where it was held that Under the
Mitakshara law, when a father dies leaving self-acquired property an undivided son takes such property to the exclusion of a divided son, although
the division took place after the acquisition of such property by the father.
9. By implication this would apply a fortiori to property acquired by the father after the separation.
10. At page 383 the learned Judge considers the interest which sons have by birth in the self-acquired property of the father--a matter which shall
deal with at a later stage--and say:
One final argument requires to be noticed. It is suggested that if sons have by birth an interest in their father''s self acquisition and if at the time when
a sons separates himself there are such self acquisitions in existence, then inasmuch as at partition the son cannot obtain any share of the self
acquisitions, he would be entitled on the death of the father to regard them as property of which he could demand a shire in the same way as if it
were ordinary coparcenaries property which, for some reason or other, had been omitted from the original partition. The answer is that while
theoretically the sons have an interest by birth in their father''s self acquisitions, still, as the father can dispose of those acquisition at his pleasure
they are not coparcenary property in the ordinary sense and it is only the latter property that can form the subject of partition. After obtaining on
partition his share of all the divisible property, the separating son loses all the rights which he had as a member of the coparcenary and it was only
as a member of the coparcenary that he had by birth an interest in his father''s self-acquisitions. All the right that remains to him with regard to his
father''s property is the right by virtue of his son ship to inherit in the absence of undivided sons.
11. Here too the learned Judges took the view that an undivided son takes his father''s separate property by survivorship and that it becomes an
addition to the joint property. They say:
...the succession to the self-acquired property of the father would, where there was an undivided son, be by survivorship rather than by inheritance
and he who took by survivorship would exclude those, such as divided sons, who could only take in any case by inheritance.
12. In Viravan Chettiar, represented by Ramasami Chettiar Vs. Srinivasachariar, , a Full Bench of the High Court at Madras agreed with the
decision in Nana Tawker''s case as regards the order of succession, but they held that the undivided sons take the property by inheritance and not
by survivorship. At page 534 Old-field J. says that the dictum about survivorship was unnecessary to the conclusion in Nana Tewker''s case and
should not in his opinion be followed and at page 507 Kumaraswami Sastri J. says:
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.
13. This learned Judge expressed the view that the observations about succession to self-acquired property by survivorship require re-
consideration Portage the Full Bench dissented from the earlier decision on this point, but as I have already said they agreed with it as regards the
order of succession.
14. While on the subject of the mode of succession, as distinguished from the order of succession, I may mention certain authorities which seen to
indicate that the view taken by the Full Bench of the Madras High Court on this subject is correct. In Katama Natchiar v. The Raja of Shivagunga
(1863) 9 Moo. IA 539, the Judicial Committee made it clear that ancestral property passes by survivorship and self-acquired property by
inheritance. At page 611 their Lordships say:
But the law of partition shows that as to the separately acquired property of one member of a united family, the other members of that family have
neither community of interest nor unity of possession. The foundation, therefore, of a right to take such property by survivorship fails....
15. In Neelkisto Deb Burmono v. Beerchunder Thakoor (1869) 12 Moo. IA 623 at p. 541, their Lordships say.
In Katatna Natchier v. The Raja of Shivagunga (1863) 9 Moo. IA 539,...it is stated in a judgment which underwent the most careful consideration
by their Lordships that there are in the Hindoo law two leading rules of inheritance that founded on the religious duty and superior efficacy of
oblation and sacrifice and that of survivorship. Where the latter rule cannot apply the former must be resorted to.
16. In Rajah Ram Narain Singh v. Pertum Singh (1873) 20 WR 189, it was held that self-acquired property becomes joint family property, in the
hands of the next generation. At page 191, second column, the learned Judges say:
As long as it is separate and in the condition of self-acquired property, the person who is the holder of it has no one to consult in regard to the
disposal of it except himself. But the moment it passes from his hand by descent into the hands of some one in the next generation, it becomes joint
family property--the property of several persons united together as a joint family with regard to it--the property of a new joint family springing from
a new root. And it continues to go down by one rule of descent only.
17. In Mulla''s ""Principles of Hindu, Law"", 9th Edn., p. 23, Section 31(1)(a) the learned author says that two or more sons, grandsons and great-
grandsons succeeding as heirs to the separate or self-acquired property of their paternal ancestor will take the property as joint tenants with a right
of survivorship by which he presumably means a right of survivorship inter se.
18. In Mayne''s ""Hindu law"", 10th edition at page 352 there is the following observation:
The Judicial Committee in Venkayamma v. Venkatramanayamma ILR 25 Mad. 678 pointed out that, where the sons succeed to the self-acquired
property of the father, their inheritance is unobstructed and they take it by survivorship.
19. But I do not think that in the last mentioned case the Privy Council has expressed the view that the sons succeed by survivorship to the self-
acquired property of their father. In that case a Hindu named Venkat Rao died, leaving a widow and a daughter. The daughter had two sons and
the litigation was between the sons of the latter. The property was the self-acquired property of Venkat Rao and the question of law which their
Lordships had to determine is stated in the judgment as follows:
If he (i.e. Vankat Rao) died intestate, did his property descend on the death of his daughter to tier two sons jointly with benefit of survivorship or
jointly or in common without benefit of survivorship?
20. It was held by their Lordships that a Hindu daughter succeeds to her father''s self-acquired property as a limited owner and on her death her
sons succeed to it jointly with benefit of survivorship.
21. At page 687 they say:
Members of a joint family who succeed to self-acquired property take it jointly.
22. This is not the same thing as saying that they take the property by survivorship. I find some difficulty in appreciating upon what principle, under
the Hindu law, the sons can take by survivorship the self-acquired property of their deceased and upon authority, that undivided sons succeed to
the self-acquired property of their father by inheritance as joint tenants with a right of survivorship inter se. It is a case of joint succession by
inheritance.
23. So much for the mode of succession. I will now return to the reported decisions as regards the order of succession.
24. In Chintapenta Narasimham v. Chintapenta Narsimham (1932) 55 Mad. 577 : AIR 1932 Mad. 361, it was held that on the death of a Hindu
leaving self acquired property his undivided sons succeed to the property to the exclusion of a divided son. At page 579 Waller J.--who delivered
the judgment,--after mentioning Fakirappa v. Yellappa (1898)22 Bom. 101 and Mayne''s comment upon it, says:
In other words, the separate property becomes part of the joint property in the hands of the heirs and as a divided member no longer belongs to
the co-parcenary and has no interest in the property, he can take no share in it.
25. The case of Shamrao Bhaurao Marathe v. Krishna rao Bhaurao Marathe AIR 1941 Nag. 297, was concerned with brothers and it was held
that a separated brother and a brother living with, but apparently not joint in status with, a third brother were entitled to inherit equally the third
brother''s self-acquired property. At page 300 the learned Judges say.
It must therefore follow that a son who does not fulfil the condition of being a coparcener with his father is not entitled to the father''s sell-acquired
property. That accounts for the preference accorded to the undivided son.
26. Further on he observes:
It will thus appear that, while the brothers are regarded as distinct individuals, the father and son are regarded as constituting one entity which can
be broken up only by a partition The natural and necessary result of the distinction is that, while the sons'' interest in his father''s self-acquired
property arises by birth, that of a person in the self-acquired property of his brother arises on the death of the porosities....
27. The above observations as regards the father and sons were unnecessary for the decision of the matter in controversy and are therefore obiter;
but they are nevertheless entitled to respect.
28. Since I begin this judgment, my brother Bajpai has drawn my attention to a Full Bench decision of the High Court at Rangoon in
Raghubardayal v. Ramdulare (1928) 6 Rang. 367 : AIR 1928 Rang 2 (sic)6, where it was held that the decision of the High Court at Madras in
Nam Tawker''s AIR 1936 Oudh 206, case was an authority for holding that under the Mitakshara law, on the death of the father leaving self
acquired property an undivided son takes such property to the exclusion of a livided son.
29. The Chief Court of Oudh has taken a view which conflicts with the view expressed by the High Court of Bombay, Madras and Rangoon and
with the observations which were made obiter by a learned Judge of the High Court at Nagpur. In AIR 1930 77 (Oudh) , it was held that
undivided and divided sons equally inherit the self-acquired property of their father. It was held that., in the absence of any text to the contrary,
self-acquired property is not subject to the rights of survivorship, but is governed by the general rules of inheritance, according to which all sons of
the deceased shall succeed in equal shares, irrespective of any consideration of their being united or separate; the rule is equally good in a case
where a son has separated and the father acquires the property after such separation. It is a forcibly rapeseed judgment but with respect I am
inclined to think that it is somewhat weakened by the circumstance that the learned judges relied on a decision of this Court in Kunwar Bahadur v.
Madho Prasad (1919) 17 ALJ 151 : AIR 1919 All. 223 (1), which appears to me to be irrelevant inasmuch as in that case there was apparently
no proof of severance of sates.
30. So much for the reported decisions which bear directly on the question referred to us.
31. There can be no doubt that succession to ancestral property and inheritance of self-acquired property are on an entirely different footing. I will
first consider the position of undivided coparceners. In respect to ancestral property there is community of interest, unity of ownership and unity of
possession--vide (1941) 9 ITR 695 (Privy Council) and success on is by survivor-hip among the copartners. As regards self-acquired property of
the rather I have held that it goes by inheritance, but it becomes joint property in the hands of the sons with a mutual right of survivorship. In
ancestral property the sons acquire an equal right by birth, in self-acquired property they also have a certain right or interest by birth, but it is very
different from the right which they have in ancestral property. In Chapter I, Section 1, placitum 27 of Part II of Macnaghton and Colebrook''s
Mithakshara, relating to inheritance, it is stated:
Therefore it is a settled point that property in the paternal or ancestral estate is by birth, although the father has independent power in the disposal
of effects, other than immovables, for indispensable acts of duty nil ''o'' proposes prescribed by texts of law, as gifts through affection, support of
the family, relief from distress and so forth, but he is subject to the control of his sons and the rest in regard to the immoveable estate, whether
acquired by himself or inherited from his father or other predecessor....
32. Sloka CXVIII of Section IV of this same Chapter says:
Whatever else is acquired by the coparcener himself, without detriment to the father''s estate, as a present from a friend or a gift at nuptials does
not appertain to the co-heirs.
33. Placita 9 and 10 of Section V of this Chapter read thus:
9. So like vise the grandson has a right of prohibition, if his unseparated father is making a donation or a sale of effects inherited from the
grandfather, but he has no right of interference if the effects were acquired by the father. On the contrary he must acquiesce because he is
dependant.
10. Consequently the difference is this although he has a right by birth in his father''s and in his grandfather''s property still, since he is dependant on
his father in regard to the paternal estate and since the father has a predominant interest as it was acquired by himself, the son must acquiesce in the
father''s disposal of his own acquired property, but since both have indiscriminately a right in the grandfather''s estate, the son has a power of
interdiction if the father be dissipating the property.
34. It will be seen the it there is a contradiction between placitum 27 of Section I and placita 9 and 10 of Section V. These placita were
considered by this Court in Sital v. Madho (1877) 1 All. 394, where it was held that although prohibition on moral or spiritual grounds may be
implied by the texts, yet where it is not declared that there is absolutely no power to do such acts, those acts, if done, are not necessarily void and
therefore the gift to one son by the father of self-acquired property is not illegal. This view was approved by the Privy Council in Balwant Singh v.
Rani Kishori (1898) 20 All. 267. It was there held that a father being a member of an undivided family subject to the Mitakshara can exercise full
power of disposition over his own as distinguished from ancestral property. At page 285 their Lordships say:
All these old text books and commentaries are apt to mingle religious and moral considerations, not being positive laws, with rules intended for
positive laws.
In this connection they quote Sir William Macnaghten''s dictum about the vinculum juris and the vinculum fiudoris.
In Mayne''s ""Hindu Law,"" 10th Edn. at page 352 the learned commentator says:
So too in the case of ordinary portable property acquired by a father the sons'' right by birth exists even though the other rights of a coparcener,
such as the right to enforce a partition, cannot, owing to the power of control and the dominent interest of the father, co-exist. The right by birth in
such property is not a mere spes successionis, but it can be renounced or surrendered so that, as has been held, a divided son loses his right of
inheritance to it.
35. The learned author cites the Madras decisions which I have already mentioned.
36. The position, therefore, is that Hindu sons do not acquire by birth a legally enforceable right as regards the self-acquired immovable property
of their father but they do acquire an interest in it which consists in a moral and spiritual injunction upon the father not to squander the property to
their detriment.
37. On the father''s death such property devolves by inheritance. If the father and sons were undivided at the time of the former''s death, the sons
will succeed to it as joint owners with benefit of survivorship. If there are no undivided sons, the divided son or sons will take it as tenants in
common to the exclusion of the widow if any--vide Ramappa Naicken v. Sithammal (1879) 2 Mad 183.
38. The question which we have to decide, however, is whether the divided son his any right of inheritance where undivided sons exist at the
father''s death. There is no text of the Mitakshara which directly distinguishes between the right of inheritance of an undivided and of a divided son
and Learned Counsel for each party relies upon this fact. On the one side it is said that the proposition that undivided sons will have preference is
so obvious that there was no necessity to state and on the other hand it is contended that in the absence of any text to the contrary divided and
undivided sons must be held to have an equal right of inheritance by virtue of their relationship with their father, for it is this which determines their
right to the property. In this connection we are referred to the Mitakshara, Chapter I, section placitum 3, which says:
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 or
grandsons.
This section is beaded ""Definition of Inheritance and Partition.
So too in the Virmitrodaya it is said:
Besides, ownership in the property of the father or other ancestor is to be held to be caused by sonship etc alone....
39. This will be found in Setlur''s ""Complete Collection of Hindu Law Books on Inheritance"" in his translation of the Virmitrodaya at page 437,
Clause 12. There can be no doubt that the right of succession which sons have to their father''s property, whether it be ancestral property which
goes by survivorship or self-aquired property which goes by inheritance is by virtue of their filial relationship, but this does not settle the question
whether united sons have or have not priority of inheritance over divided sons In Sarvardhikari''s ''Hindu Law of Inheritance'', p. 775 we read:
Sons legally separated from their father have not, on his death, any claim to inherit his property with a son not separated. Thus, where a father
separates from his sons, an after-bron son alone inherits the share which his father took on partition as well as any wealth acquired by the father
subsequent to partition.
In Sarkar''s ""Hindu Law"", 7th Edn. at page 49'', it is said;
On the death of the father having self-acquired property, an undivided son takes such property to the exclusion of a divided son, although the
division takes place after the acquisition of such property by the fattier.
In West and Buhler, 4th Edn. at page 64 we read:
Sons who have separated from their father and his family are passed over in favour of sons remained united with him or were born lifter the
separation. This is an application of the principle that a joint and undivided succession of the descendants being taken as the general rule, those
who have become exceptions to it or who, having been exceptions, have since ceased to be so are treated accordingly.
Gaur''s ""Hindu Code"", 4th End., Section 341(2) reads:
Sons who were joint with their father at the the time of his decease inherit to the exclusion of those who were separate.
This is based on Fakirappra v. Yellappa (1896) 22 Bom. 101 and Narasimham v Narasimham (1932) 55 Mad. 557 : AIR 1932 Mad. 361.
40. In Ghose''s ""Principle of Hindu law"", 3rd Edn. I, p. 85, the learned comentator says:
Under the Mitakshara law the separated son is postponed to the associated son in respect of ancestral as well as of self-acquired property.
41. The decision in Nana Tawker v. Ram Chandra Tawker (1908) 32 Mad 377 : 2 IC 519, is referred to in this connection.
42. In Ramappa Naicken v. Sithammal (1879) 2 Mad. 182 which I have already mentioned in another connection their Lordships say:
Disputing the position that the right of sons is annulled by partition, Jagannatha declares, If a father, having made a partition with his sons, die after
reuniting himself with any parcener whomsoever, it would follow that his property could not be inherited by the divided sons, but no other persons
ought to take the succession while sous live, since none can, like them, have a present right to his property.
43. Jagannatha may have been speaking of the Dayabhaga, but it is not suggested that there is any difference as regards succession to self acquired
property between the Dayabhaga and the Mitakshara schools of law. Whether the pronouncement is or is not correct quoad re-united sons is a
matter for consideration, but if Jagannatha held this view as regards re-united sons, he must have held it a fortiori as regards undivided sons.
44. This brings us to a consideration of re-union, for it is contended that an analogy can be drawn from the rules of succession relating to re-united
brothers and re-united sons. Chapter II, Section 9, placitum 1 of the Mitakshara, which is headed ""Re-union of Kinsmen after Partition"", read''s:
The author next propounds an exception to the maxim that the wife and certain other heirs succeed to the estate of one who dies leaving no male
issue.
Then comes sloka CXXXVIII, which reads:
A re-united brother shall keep the share of his re-united co-heir who is deceased, or shall deliver it to a son subsequently born.
45. This of course relates only to brothers who re-unite; it does not relate to sons who have reunited with their father. But at least it shows that re-
united brothers have a preferential succession to each other''s property where the deceased brother leaves no for and it seems to indicate that there
is some privilege or priority in unity, at least so far as brothers are concerned.
46. In Sham Narain v. The Court of Wards (1873) 20 WR 197 at p. 200 the learned Judges say:
It is admitted that the text of the Mitakshara is not exhaustive and that the principle and not the letter is to be followed....
At page 201 they say:
We cannot suppose that the author of the Mitakshara looked upon family union with such favour that he held out special inducements to reunion
after separation, while at the same time he gave no preference to the brothers who had never separated over the brothers who had dissociated
themselves. The apparent difference seems to be reconciled by supposing him to treat every division of a family as a complete separation of all its
members and the continuance in union of some after division and the separation of others as a reunion in this view union and re-union, so far as
concerns secession, are synonymous terms....
Further they observe:
It is evident that the material circumstances are family partnership and relation by blood. If any special effect were intended to he given to re-union
as against unbroken union, one should have expected very clear rules on the subject.
47. In the case of sons, we are referred to the Virmitrodaya in which Manu''s text is quoted,
To the nearest sapinda the inheritance next belongs;
and also to Yajnavalkhya, who says,
The sons shall on the death of the parents divide the estate and debts in equal shares
--Vide page 436 of Setlur''s book. And the view is expressed that re-united and unassociated sons succeed equally to their father''s property. At
page 437 we read:
...and as the sonship etc. belong to all the male issue, whether re united or not, therefore the succession to their property of all the sons and the like
without distinction is proper.
48. Sarkar in his 7th Edition at page 586 says that a son, grandson and great grandson inherit as in the ordinary case of succession whether they
are separated or reunited. He says:
A son who is re-united cannot claim preference to another who remains separate.
49. The learned author emphasises the great difference between an undivided member and a re-united member. He says:
....in the former case there was no severance of status, whereas in the latter there was severance, but by express agreement they reunited.
Saraswati Vilasa says:
Therefore that the ownership of re-united and not re-united sons in the paternal wealth is equal is only reasonable.
50. In AIR 1931 268 (Privy Council) , the Privy Council observed that Saraswati Vilasa, though an authority on Southern India, could be applied
in the case before their Lordships to Benares in the absence of other authority. It will be seen that Saraswati Vilasa''s pronouncement is in
conformity with the Viramitrodaya, which has been held to be of high authority in Benares--Vide The Collector of Madura v. Moottoo Ramalinga
(1868) 12 Moo. I A 397 at p. 438 and also Gridhari Lall Roy v. The Bengal Government (1868) 12 Moo. I A 448 at p. 466 and Girja Bai v.
Sadashiv Dhundiraj AIR 1916 PC 104 : 43 Cal 1031 at p. 1046-7. Thus as regards sons the authorities would seem to indicate that reunited and
divided sons are ordinarily on an equal footing.
51. But if a son is born after separation, it would appear that a re-united son acquires a preferential status, vis-a-vis the divided sons. As regards
the after born son, there are clear provisions. Manu rays:
But a son born after partition shall alone take the property of his father--
52. Vide Max Muller''s ""Sacred Books of the East, Vol. 25, Chapter IX, Section 216.
53. This rule is mentioned in the Mitakshara, Chapter I, Section 6, placitum 4, where it is said:
The same rule is propounded by Manu: A son born after a division shall alone take the parental wealth.
Placitum 6 says:
Thus, whatever has been acquired by the father in the period subsequent to partition, belongs entirely to the son born after separation For it is
ordained All the wealth which is acquired by the father himself who has made a partition with his sons goes to the son be gotton by him after the
partition those born before are declared to have no right.
54. Then comes the provision for re-united sons where there is a son born after partition.
Placitum 7 reads:
But the son born subsequently to the separation must after the death of his father, share the goods with those who re-united, themselves with the
father after the partition: as directed by Manu; or he shall participate with such of the brethren as are re-united with the father.
In the Viramitrodaya it is stated:
But if some of the sons have been re-united with the father, then the after born son is not entitled to the whole of the paternal property but he shall
participate with them.
Vide Setlur, p. 344.
At page 146 of the same book we find the following declaration of Saraswati Vilasa:
The son born after partition shall divide with stitch of the brothers as lived in re-united with the father after partition.
55. On the same page there is the following pronouncement:
Where a father has two or three or many sons and is divided with some and undivided with others, property acquired by him shall be divided after
his death only among his undivided sons.
56. This comes under the heading ""The right of the son born after partition,"" and so it is contended that the sons referred to are all sons born after
partition. Assuming this to be for a useful analogy can nevertheless be drawn in respect to the question referred to us.
57. In Ganganatha Jha''s ""Hindu Law in its Sources"", Vol. II, page 347 we read:
If a son is born after partition, he shall receive the property of the"" father alorie, or if any other sons had been re-united, he shall share it with them.
58. The learned author cites inter alia Manu and the Viramitrodaya.
59. There are other authorities which deal with after born sons simpliciter; that is, without by reference to re-united sons. Ganganatha Jha at page
351 of the 2nd Volume quotes the following from Brihaspati:
The self-acquired property of the father divided from his sons goes entirely to the son born after that partition Those born before have been
declared to have no right over it.
60. In Ghose''s ""Principles of Hindu Law,"" 3rd edition Vol. I, page 85 we read:
According to the Rishis, a son born after partition with the sons takes all the wealth of the father.
61. In Collydoss Doss v. Krissan Chunder Doss (1869) 11 WR 11 at p. 18, the learned Judges, after quoting Manu and the Mitakshara, say:
This shows that a son begotten after his father has been separated from his brothers alone inherits the share which his father took after partition, as
well as any wealth acquired by his father himself.
62. This was a judgment by Sir Barnes Peacock C.J. and four other learned Judges.
63. In Nawal Singh v. Bhagwan Singh (1882) 4 All 427, it was held that the property acquired by a Hindu governed by the Mitakshara Law after
a partition has taken place between him and his sons devolves, on his death, when he leaves a son born after partition, on such son to the exclusion
of the other sons. The learned Judges cite Manu and Brihaspati and the Mitakshara Chapter I, Section VI, sloka CXXII, which is concerned with
the rights of a son born after partition and founding upon this decision and upon the decision in the case of Collydoss (1869) 11 WR 11 at p. 18
Sir Dinshaw Mulla in Section 310(1) of his IX edition says:
Where the father has reserved a share to himself, a son who is begotten as well as born after partition is not entitled to have the partition reopened,
but in lieu thereof be is entitled, after the father''s death to inherit not only the share allotted to the father on partition, but the whole of the separate
property of the father, whether acquired by him before or after partition, to the entire exclusion of the separated sons.
64. Thus it is clear that an after-born son succeeds to the father''s self acquired property to the exclusion of the separated sons. It is also clear that,
if there are any re-united sons, they will share with such after born son and this will apply a fortiori to undivided sons. It would also appear that re-
united brothers--and therefore a fortiori undivided brothers--have priority of succession to each other''s property where the deceased has left no
son. I have some difficulty in appreciating why, if re-united sons are on an equal footing with undivided sons in the absence of an after born son,
they should be given priority over the divided sons in common with a son who may be born after separation; but this difficulty which I am
experiencing will not affect my conclusion.
65. Upon the authorities the legal position as regards self acquired property appears to be this:
(1) Re-united--and therefore also undivided--brothers have a preference over divided brothers in succession to each other''s self-acquired
property where the deceased brother has left no son.
(2) A son born after separation inherits the father''s self acquired property to the exclusion of divided sons.
(3) Re-united sons share this preference with such after born son over divided sons; and a fortiori undivided sons will share such preference with
the after born son.
66. The question remains whether, in a case where there is no after-born son, the undivided sons will exclude the divided sons.
67. I must confess that, if the author of the Viramitrodaya is right when he says that re-united and divided sons are on an equal footing (in the
absence of an after-born son), I have some difficulty in appreciating the grounds upon which union and re-union are distinguishable. Nevertheless,
it seems to me that, notwithstanding the absence of any express text upon the question referred to us, there is good analogy to be drawn from the
propositions which I have set out and upon an anxious consideration of the ancient texts, the commentaries and the Judicial authorities I think it
must be held that there is a superior right or virtue attaching to uninterrupted unity with the father, in consequence of which the divided sons are
postponed to the undivided sons, who succeed to the father''s self-acquired property as coparceners with benefit of survivorship and in my opinion
this is in accordance with Hindu sentiment and the spirit of Hindu Law. Moreover, it seems to me that if the opposite view were held, it might lead
to anomalous and inequitable results. A divided son would only be liable for debts contracted by the father to the extent of his own share of the
self-acquired property left by the father at his death, whereas the undivided sons would be liable to pay such debts both from the self-acquired
property in hearted by them and also from the ancestral property, if any, to which they have succeeded by survivorship. There is also another
aspect of the matter, which is this:
68. Supposing there are three sons and one separates and is given a one-third share of the self-acquired property of the father. On the latter''s
death there will be nothing to prevent such son, on the father dying intestate, from claiming a one-third share of the balance of the self-acquired
property. This could of course be obviated by the father making a will, but it is or at least it has hitherto been the exception rather than the rule for
a Hindu to make a testamentary disposition of his property and I am of opinion that, whatever may be said as regards the systems of law which
govern other communities, the result which I have envisaged would be repugnant to Hindu law and Hindu sentiment Here again, however there is a
difficulty arising out of the analogy of reunion as propounded in the Viramitrodaya.
68. The question referred to us is by no means easy of solution and there is much to be said for the opposite view, which in some respects may
appear more logical, but upon the whole matter I have arrived at the conclusion that undivided sons will succeed to the self-acquired property of
(he father-in preference to a divided son, whether such property was acquired before or after such separation and whether the divided son was or
was not given a share in such property at the time of separation. I would, therefore, answer the question in the affirmative.
Bajpai J.
(April 15 1942)
69. A pure question of Hindu Law has been referred by a Division Bench of this Court to the Full Bench and it is formulated thus:
On the death of Hindu leaving self-acquired property do the undivided sons-succeed to such property to the exclusion of the divided son under the
Mitakshara Law?
70. The Appellant contends for the proposition that the undivided and the divided sons share equally in such property while the Respondent
contends that the undivided sons exclude the divided sons.
71. Mayne in his book on Hindu law and Usage, 10th Edition, at page 645, commenting on the case of Fakkirappa v. Yellappa (1896) 22 Bom.
101, says:
A grandson sued his grandfather and uncles for a petition. He obtained a decree as to all the joint property, but failed as to part which was held to
he the separate property of the grandfather. On the death of the grandfather he brought a fresh suit for a share of this, contending that by descent it
had become joint property. This was perfectly true but the answer to the Plaintiff was that he was no longer a member of the coparcenary. On the
grandfather''s death, his interest in the joint property passed to the remaining coparceners by survivorship. His own separate property passed to his
united sons as heirs and in their hands became an addition to the joint property, in which the divided grandson had no interest.
This is merely an illustration of the rule that property, which is held separate in one generation always becomes joint in the text generation. If it is
held by a father who is himself the head of a coparcenary, it passes at his death to the whole coparcenary and not to any single member of it, all of
them having under the Mitakshara equal rights by birth.
72. Again at page 350 the learned autho says:
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 birth right, though dormant and enables the son to succeed to the property by survivorship or as apratibandhadaya.
It was accordingly held in Nana Tawker v. Ramchandra (1908) 32 Mad 377 : 2 IC 519 that an undivided son takes his father''s separate property
by survivo ship; and that an undivided son takes the self-acquired property of the father to the exclusion of the divided son. Dissenting from the first
preposition a Full Bench of the Madras High Court has decided that an undivided son takes the self-acquired property of his father by inheritance
and not by survivo ship, Kumara Swami Sastri J. expressing the opinion that ancestral property is co-extensive with the objects of
apratibandhadaya or an unobstructed heritage. This view is opposed to the clear statements in the Mitakshara and in the other works bearing on
the point which expressly refer to the son''s right in the father''s wealth as unobstructed heirtage.
The misconception was evidently due to the view based on the observation in Sartaj Kuari''s case AIR 1941 Nag. 297 relating to importable
estates that there can be no right by birth where there is no right to partition. But the right by birth in the father''s property is expressly stated by all
the Sanskirt authorities and the observation in Sartaj Kuari''s case (1908) 32 Mad 377 : 2 IC 519, has itself no force after the reiterated
explanation of it in subsequent cases that the existence of survivorship is quite consistent with the dominant interest possessed by the holder of an
impartible estate and with the absence of a right, to partition or to interdict an alienation on the part of the junior members. As AIR 1932 216
(Privy Council) , though the other rights which a co-parcener acquires by birth in impartible property no longer exist, the birth right of the senior
member to take by survivorship still remains. So, too, in the case of ordinary partible property acquired by a father the sons'' right by birth exists
even though the other rights of a co-parcener, such as the right to enforce a partition or to interdict an alienation cannot, owing to the power of
control and the dominant interest of the father, co-exist. The right by birth in such property is not a mere spes successions but it can be renounced
or surrendered so that, as has been held a divided son loses his right of inheritance to it.
On principle, the position taken up in the Mitakshara that the sin has a right by birth in the property acquired by the father is unassailable....The
error lies in overlooking the difference between the son''s right by brith and the sons'' equal ownership with his father in the grandfather''s-property
under a special text. The Judicial Committee in Venkayyamma v. Venkataramanayyamma (1902) 25 Mad 678 pointed out that where the sons
succeed to the self-acquired property of the father, their inheritance is unobstructed and they take it by survivorship.
73. I shall have occasion to refer to AIR 1932 216 (Privy Council) , later at some length.
74. In West and Buhler''s Hindu Law, 4th Edition, we have the following passage at page 64:
Sons who have separated from their father and his family are passed over in favour of sons who have remained united with him, or were born after
the separation.
75. According to the learned authors:
This is an application of the principle that a joint and undivided succession of the descendants being taken as the general rule, those who have
become exceptions to it, or who having been exceptions have since ceased to be so, are treated accordingly. Their rights of succession are, as to
their mutual extent, their rights as they would be in a partition made immediately on the death of the propositus. This is brought out most clearly
perhaps in the first section of the Daya Kramasangraha. It is in general rather assumed than propounded, as after providing for representation of
sons by grandsons and great grandsons, the discussions proceed on the basis of the deceased owners'' having held separately, without which there
would be no room for the several rules to operate, since in a partition on his death, the then joint owners with him would take the whole.
76. From the page 323 onwards the learned authors give a digest of Vyavasthas and at page 347 there is question No. 19 relating to an after born
son. The question is:
A man had two sons. The father divided his property between them and reserved a portion for himself. He had afterwards a third son born to him.
The father subsequently died. The question is, what portion of the property should be given to the third son?
Answer:
It appears that when the father was alive he divided his property between his sons and reserved a portion for himself. The father may have
acquired some more property after the division took place. All the property which may thus have come into the possession of the father belongs to
the son born after the division. The sons who separated cannot claim any portion of this property. The son born after the division will be entitled to
it and will be also liable for such debts of the father as he may have contracted since the separation of his two sons.
77. In Sarvadhkari''s Hindu Law of Inheritance, Tagore Law Lectures, Edition 1880, page 836, it is said:
Sons legally separated from their father have not on his death, any claim to inherit his property with a son not separated. Thus, where a father
separates from his sons, an after born son alone inherits the share which his father took on partition, as well as any wealth acquired by the father
subsequent to partition.
78. Ghose in his Principles on Hindu Law, 3rd Edition, Volume I, at page 85 says:
According to the Rishis, a son born after partition with the sons, takes all the wealth of the father. Under the Mitakshara Law the separated son is
postponed to the associated son in respect of ancestral as well as of self acquired property.
79. Sir Hari Singh Gour in his Hindu Code, 4th Edition at page 928 lays down certain rules of inheritance and says that the issues of the deceased
inherit thus:
(1) When there are more than one son, whether by the same or different mothers they take equal sharers;
(2) Sons who were joint with their father at the time of his decease inherit to the exclusion of those who were separate.
80. Macnaghten in his Principles and Precedents of Hindu Law in the Second Volume where the precedents are mentioned, at page 16 gives case
No. XII as follows:
Q. A person having assigned a moiety of hit self-acquired landed estate to his sons by one wife, separated himself from them and with the other
half continued to live in a state of union with his son by another wife. On the death of the father are the sons entitled to an equal portion of the
estate left by him?
Reply
Under the circumstances stated, the disposition of the estate made by the father will hold good, if not made through perturbation of mind
occasioned by disease or the like, or through irritation against any one of his sons, or through partiality for the child of a favourite wife, in either of
which cases each of his sons would be entitled to an equal share of the estate, otherwise, on his death, the sons who were separated from him
during his lifetime has no claim to the inheritance.
81. It would thus appear that the well known text book writers on Hindu Law are all in favour of the view that the undivided son has preference
over the divided son.
82. A somewhat discordant note, it is said, has been struck by Golap Chandra Sarkar Shastri in his Hindu Law, 7th Edition, at page 586, where
he says:
Sons, grandson and great grandson inherit as in the ordinary case of succession, whether they an separated or reunited. A son who is reunited
cannot claim preference to another who remains separate. But it has been held in some places that according to the Mitakshara, a reunited son has
a preferential right of inheritance to one who remains separate. The Madras High Court in a case in which the point did not arise went beyond the
scope of the appeal and held that ''the rule being as above stated in the case of reunited son there can be no hesitation in applying the same rule in
the case of sons who have never separated. It is needless to point out that the learned Judges have entirely lost sight of the great difference
between undivided member and reunited member in the former case there was no severance of status whereas in the latter there was severance,
but by express agreement they reunited. In the former case, according to their Lordships, the principle of survivorship applies whereas in the latter,
altered order of succession is expressly provided for in the texts.
83. The learned author by the above passage points out the difference between undivided member and reunited member. He was obviously
referring to the case of Nana Twaker v. Ramchandra (1908) 32 Mad 377 : 2 IC 519 and held the view that a preference could not be given to the
reunited son, but I venture to think that his view was that a preference could be given to the unseparated son because he says that in the case of an
unseparated son there is no severance of status and the principle of survivorship applies, but in the case of a reunited son there was an express
agreement for reunion and accession is expressly provided for in the texts. That this is his is clear from another passage occurring at page 494
which is as follows:
But on the death of the father having self-acquired property, an undivided son takes such property to the exclusion of a divided son, although the
division takes place after the acquisition of such property by the father. It is said that after obtaining on partition his share of all the divisible
property the separating son loses all the rights which he had as a member of the co-parcenary and it was only as a member of the co-parcenary
that he had by birth an interest in his father''s self-acquisitions
84. The decision in Nana Tawker''s case (1908) 32 Mad 377 : 2 IC 519 seems to be approved by Sarkar.
85. The result of my study of the various text book writers is that all the authority is in favour of the view that the divided son is excluded.
86. I now come to the cases that have arisen in the various High Court of India. In Fakirappa v. Yellappa (1896) 22 Bom. 101, it was held that as
between united sons and a separated grandson, the succession on the grandfather''s death of the property, both ancestral and self-acquired, left by
him goes in preference, according to Hindu Law. to the united sons, Kanada J. and Jardine J. gave separate but concurring judgments and
although no original texts were discussed reliance was placed on West and Buhler''s Hindu Law.
87. In Nana Tawker v. Ramchandra Tawker (1908) 32 Mad 377 : 2 IC 519 it was held that under the law of the Mitakshara on the death of the
father leaving self-acquired property an undivided son takes his property to the exclusion of a divided son, although division took place after the
acquisition of such property. In this case the learned Judges referred to the Bombay case of Fakirappa v. Yellappa (1896) 22 Bom. 101
mentioned above and followed it. They discussed some of the text book writers to whom reference has already been made by me. Reference was
also made to Vyarastha Chandrika, Volume II among precedents of partition at page 404 where it is stated:
In a Hindu family where a reunion has taken place amongst certain members after partition the members of the reunited family an their descendants
succeed to each other to the exclusion of the members of the unassociated or not reunited branch.
88. The learned Judges further said that the reasons given by Sarkar for his opinion were not easy of acceptation and it was pointedly observed
that the rule being a above stated in the case of reunited son and being based on certain texts of the Mitakshara and Vivadachintamani there could
be no hesitation in applying the same rule in the case of sons who had never separated.
89. The learned Judges probably had not the benefit at Sarkir''s opinion at page 494.
90. With this wealth of authority a young lawyer (Mr. K.N. Katju as he then was, but who has now risen to great eminence in the domain of law
and politics) (sic) gave expression to his view in two articles contributed to the Allahabad Law Journal of 1914 dissenting from the opinions of the
Madras and Bombay Judges and thought that he was fortified in his views by the opinion of Sastri Gopal Chandra Sarkar. I have already pointed
out that Sarkar was averse to giving a preference to the reunited son as the learned judges of the Madras High Court gave (I shall discuss this point
at some length later) but was of the opinion that the (sic) son did have a preference over the separated son.
91. Since then there hive been other cases in Madras and Nagpur where tin view he been taken that the divided son is postponed to the undivided
son.
92. In Viravan Chettiar, represented by Ramasami Chettiar Vs. Srinivasachariar, , a full Bench of that Court approved of the decision in Nana
Tawker v. Ramchandra Tawker (1908) 32 Mad 377 : 2 IC 519 mentioned above so far as the rule regarding the order of succession between
undivided and divided sons was concerned, but held on the question whether a succession certificate was necessary or not that it was necessary
inasmuch as the self-acquired property of the father did form part of the ""effects"" of the father within the meaning of Section 4 of the Succession
Certificate Act. The learned Judges were inclined to the view that the undivided Hindu son took the self-acquired property of his deceased father
by inheritance and not by survivorship.
93. In Narasimham v. Narasimham (1932) 55 Mad. 577 : AIR 1932 Mad. 361 it was held that
on the death of a Hindu leaving Self-acquired property his undivided suns succeed to such property to the exclusion of a divided son.
94. The same view was taken by Niyogi J. in the case of Shamrao Bhaurao Maratahi v. Krishnarao Bhaurao Marathi AIR 1941 Nag. 297.
95. A different view was taken by Stuart and Bisheshar Nath JJ. in Badri Nath v. Hardeo (1930) 5 Luck. 649 : AIR 1939 Oudh 77, where,
relying on Kamta Natchear v. The Rajah of Shivagunga (1863) 9 Moo. IA 539 their Lordships held that in the case of property acquired by a
Hindu father after his separation from some of his sons, the sees who had separated from him will be entitled to share along with the sons who may
be living jointly with him.
96. These were all the cases that were cited before us at the bar and which have a direct bearing on the question at issue before us. There is yet
another case where the same view was taken as is contended for by the Respondent. In Raghubar Dayal v. Ram Dulare (1928) 6 Rang. 367 : AIR
1928 Rang (sic) Pratt J. at p. 371 referred to the vladras case of Nana Tawker v. Ram Chandra Tawkar (1908) 32 Mad 377 : 2 IC 519 and said
that it
is an authority for holding that under the (sic) the acquisition of such property by the father.(sic) he present case the lather left a wife and son in
India and Look up ins residence in Burma, where he acquired a (sic) state. The sons by one wife joined hint and remained members of a j tint
family. The son by the other wile, Plaintiff never joined his father and maintained no relations with him under the circumstances the undivided son
would exclude the son who had separated and ceased to be a member of the joint family.
97. And Carr J. at page 372 observed--
The Madras case of Nana Tawker v. Ramchandra Tawker (1908) 32 Mad 377 : 2 IC 519 has been quoted as authority for the proposition that,
when one son is divided from his father, an undivided son takes the father''s self-acquired property to the exclusion of the divided son That
proposition may be accepted....
98. I am afraid that I have not the temerity to differ from the strong current of judicial decisions and views expressed by the learned text book
writers in favour of the proposition that 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.
99. I shall now endeavour to discuss the original texts as contained in the Mitakshara and certain Privy Council decisions. The Mitakshara is a
running commentary on Yajnavalkya Smriti and it is the law of inheritance with which we are concerned It may further be made clear that the law
of inheritance naturally concerns itself with self-acquired property though on occasion pissing reference may be made to joint ancestral (sic) and
thus where the property has not been specifically designated it may be taken that the text deals with self-acquired property. It may be conceded
that there is no definite text which speaks of the rule that the undivided son succeeds to the self-acquired property of the father in preference to the
divided son but the broad principles of the Hindu law as enunciated by the ancient Rishis might be the reason for the absence of a definite text on
that point. The normal state of every Hindu family is that it is joint in food, worship and estate. This was held by their Lordships of the Privy
Council in Neelkisto Deb Burmong v. Beer Chunder Thakoor (1869) 12 Moo I.A. 523 at p. 41 and in the olden days a great deal of sentiment
attached to keeping the family in a normal state and the disruption of the family was regarded as something objectionable. Similar feeling and
sentiments prevail even in modern times. If, therefore, there is some merit in remaining joint, the principle of the succession of an undivided son in
preference to the divided son might be understood and it may be only an extension of the fundamental principle that a joint and undivided
succession of the descendants is the general rule.
100. It was said by their Lordships of the Privy Council as early as 1897 in Balwant Singh v. Rani Kishori (1898) 20 All. 267 that a father, being a
member of an undivided family subject to the Mitakshara, (sic) exercise full power of disposition at his own dispersion over immoveables which he
has himself acquired as distinguished from ancestral property. Their Lordships effected a reconciliation between certain (sic) texts of the (sic) and
observed that certain rules which were based on religions and moral considerations should not be construed as laying down positive laws and as
was observed by Sir W. Macnaghten in his work on Hindu Law, it by no means follows that because an act has been prohibited it should,
therefore, be considered as illegal and the distinction between vinculum juris and vinculum pudoris should be kept in view and therefore, those texts
of the Mitakshara which prohibit the father from disposing of his self-acquired property which also was according to the texts subject to the control
of the sons and grandsons were only moral injunctions and could not be given legal sanction. It is argued from this that when the father dies
intestate all the sons divided or undivided, inherit the father''s self-acquisitions over which he had in his lifetime an absolute power of disposal
without interference by his sons, more particularly as it may be taken for granted that the sons have an interest even in the father''s self-acquisition
by birth, though in the case of self-acquired property they have no right of interdiction which they have in the case of ancestral property.
101. In Neelkisto Deb Burmono v. Beerchunder Thakoor (1869) 12 Moo. I.A. 523n at p. 541, their Lordships said:
In Katama Natchier v. The Rajah of Shivagunga (1963) 9 MIA. 610 it is stated in a judgment which underwent the most careful consideration by
their Lordships, that there are in the Hindu law two leading rules of inheritance, that founded on the religious duty and superior efficacy of oblation
and sacrifice and that of survivorship Where the latter rule cannot apply, the former must be resorted to.
102. Now in the case of divided and undivided sons both are equally placed so far as religious duty and efficacy of oblation and sacrifice are
concerned, but the question is whether on the principle of survivorship a preference cannot be made in favour of the undivided son. It is true that
survivorship ordinarily follows co-parcenaryship, for where a co-parcener dies before partition of the co parcenary property his undivided interest
in the property (sic), not by succession upon his heirs bit by survivorship upon the surviving (sic) and the essence of co-parcenary under the (sic)
Law is unity of ownership. It was observed by the Privy Council in the Raja of Shivagunga''s case (1863)9 Moo. IA 539;
there is community of interest and unity of possession between all the members of the family and upon the death of any one of them the others my
well take by survivoship that in which they hid during the deceased''s lifetime a common interest and a common possession.
103. The self-acquired property of the father is capable of being disposed of by him without the control of the son or the grandson during the
father''s lifetime, but it becomes ancestral when it devolves at his death on his son.
In other words, the separate property of the father becomes part of the joint property in the hands of sons and as the divided son no longer
belongs to the co-parcenary he has no interest in the property of the co-parcenary and can take no share in it--
See Chintapenta Narasimham v. Chintapenta Narasimham (1932) 55 Mad. 577 : AIR 1932 Mad. 361.
104. It is said that the above proposition laid down by Walter J. is not sound because partition does not put an end to the right of inheritance and
therefore the divided son must succeed to the father''s self-acquired property equally with the undivided son, but the answer to this argument is that
the divided son has ceased to be a member of the co-parcenary and although co-parcenaryship in the narrower sense of community of interest and
unity of possession may not exist between the father and his joint sons in respect of self-acquired property, there is still a co-parcenaryship in the
wider sense of the term and the divided son not being a member of the co-parcenary can take no share in the self-acquired property of the father.
105. Varadachariar J. in a very learned judgment (if I may say so with respect) in Venkateswara Pattar (insane) and Others Vs. K. Mankayammal
and Others, where he was discussing the case of a (sic) person, refers to three principles of succession obtaining amongst three groups of heirs
under the Mitakshara Law, (1) the son, (2) the widow and other heirs, (3) the re-united parcener and observes:
It is obvious that the principles of succession are different as amongst these three groups. In the list, it is by survivorship (even in respect of the
father''s self-acquired property), according to the scheme of the Mitakshara. In the second it is by inheritance pure and simple. In the third group it
is an anomalous rule of succession which has now been assimilated to the principle of survivorship....
106. The learned Judge observes at p. 779:
Founding himself on an observation of Lord Lindley in 25 Mad. 678 at p. 587, Mr. Sastriar contended that where there is no right to partition
there can be no right to take by survivorship. It is sufficient answer to this to say that these general remarks are not without exceptions and recent
decisions of the Judicial Committee as to succession by survivorship in the case of impartible zamindari furnish an instance of such exception see
particularly the observations in Shibaprasad Singh v. Prayag Kumari 59 Cal. 1399 at p. 1413 and Collector of Gorakhpur v. Ram Sundar Lal, 67
M.L.J. 274 at p. 284 corresponding to 56 Alld. p. 468
At page 780 he says:
Once the conclusion is reached that a disqualified person may be ''coparcener'' enough to take by survivorship, there is no reason why we should
deny the possibility of such a severance of the joint status as would put an end to the right of succession by survivorship.
107. In the case of a divided son this is exactly what has happened, namely that there has been a severance of the joint status and his right of
succession by survivorship (let me emphasise here what has been said before that even in the case of self-acquired property the succession in the
case of a joint son is by some sort of survivorship) is gone. I wish at this stage to refer again to the case of Shiv Prasad . At page 928 of the latter
series (1932 A.L.J.) Sir Dinshaw Mulla says:
Impartibility is essentially a creature of custom. In the case of ordinary joint family property, the members of the family have (1) the right of
partition, (2) the right to restrain alienations by the head of the family except for necessity, (3) the right of maintenance and (4) the right of
survivorship. The first of these rights cannot exist in the ease of an impartible estate, though ancestral, from the very nature of the estate. The
second is incompatible with the custom of impartibility as laid down in Sartaj Kuari''s case and the first Pittapur case; and so also the third as held
in the second Pittapur case. To this extent the general law of the Mitakshara has been superseded by custom and the impartible estate, though
ancestral, is clothed with the incidents of self-acquired and separate property. But the right of survivorship is not inconsistent with the custom of
impartibility. This right, therefore, still remains and this is what was held in Baijnath''s case. To this extent the estate still retains its character of joint
family property and its devolution is governed by the general Mitakshara Law applicable to such property. Though the other rights which a co-
parcener acquires by birth in joint family property no longer exist, the birth right of the senior member to take by survivorship still remains Nor is
this right a mere spes successionis similar to that of a reversioner succeeding on the death of a Hindu widow to her husband''s estate. It is a right
which is capable of being renounced and surrendered.
108. It is true that their Lordships were discussing the case of an impartible estate but what I wish to emphasise is that survivorship can under
circumstances exist even when there is no right of partition and no right to restrain alienations.
109. The cases of Amrit Narayan Singh v. Gaya Singh (1917) 45 Cal. 590 : AIR 1917 P.C. 95 and Ananda Mohan Roy v. Gour Mohan Mullick
(1923) 50 Cal. 929 : AIR 1923 P.C. 189 where it has been held that the right of a reversioner is a mere spes successions are different because
those are cases of Hindu widows and reversioners and there the right of a reversioner is undoubtedly a mere spes successions.
110. I need not here say anything much on the point that when two or more sons succeed as heirs to the self-acquired property of their father they
take the property as joint tenants with rights of survivorship. This seems to be well established for their Lordships of the Privy Council in
Venkayyamma Garu v. Venkataramanayyamma Bahadur Garu (1902) 25 Mad 678 quote with approval the view taken by Phear J. in Ram
Narain Singh v. Pertum Singh (1873) 20 WR 189 that members of a joint family who succeed to self-acquired property take it jointly and Mulla
has so laid down in his Principles of Hindu Law, 9th Edn. at page 23
111. It may be conceded that there is no definite text in the Mitakshara on the point at issue, but there are certain rules laid down about the rights
of a reunited kinsman and the rights of an after born son. I shall first deal with the text dealing with the after born son. In Chapter I, Section VI,
placitum 1, it is said:
When the sons have been separated, one who is afterwards born of a woman equal in class, shares the distribution.
112. Placitum 4 makes this rule very clear and it is as follows:
Thus same rule is propounded by Manu, ""A son born after a division, shall alone take the personal wealth"" The term parental (Pitryam) must be
interpreted ''appertaining to'' both father and mother'' for it is ordained, that ''A son, born before partition, has no claim on the wealth of his
parents, nor one, begotten after it, on that of his brother.
Placitum 5 says:
The meaning of the text is this: One born previously to the distribution of the estate, has no property in the share allotted to his father and mother
who arc separated....
Placitum 6 says:
Thus, whatever has been acquired by the father in the period subsequent to partition, belong entirely to the son born after separation. For it is so
ordained: All the wealth, which is acquired by the father himself, who has made a partition with his sons, goes to the son begotten by him after the
partition: those, born before it, are declared to have no right.
Placitum 7 says:
But the son, born subsequently to the separation, must, after the death of his father, share the goods with those who reunited themselves with the
father after the partition: as directed by Manu or he shall participate with such of the (sic), as are reunited with the father.
113. Chapter II, Section IX, deals with the reunion of Kinsmen after partition and it is important to note that almost all the placita in this chapter
deal with brothers and give preference to the reunited brother or parcener and therefore it may be argued that in the absence of a specific text a
reunited son cannot claim preference to another who remains separate and therefore the principles governing a reunited brother against a separate
brother should not be extended by analogy to a reunited son against a separate son and this seems to be the view taken by Viramitrodaya in
Setlur''s Translation at page 436 and by Galab Chandra Sarkar in his Hindu Law. 7th Edition, at page 586. I can only speculate at this attitude and
one reason that suggests itself to me is that the tendency to remain joint was great, so much so, that in the case of a son it was regarded a sin to
separate from the father and this primal sin could not be expiated by reunion even, whereas in the case of brothers where separation was not so
very wrong a locus paenitentiae was afforded.
114. But when we have specific texts giving preference to an after born son over sons born before partition (and it must be remembered that this
partition is not the partition of ancestral property but is the partition which a father effects in his lifetime qua his self acquired property) to the extent
of making him the sole inheritor of his father''s wealth and when we find placitum 7 enjoining that the after born son shall participate with such of the
brethern, as are reunited with the father, there is no reason why some argument by way of analogy be not based regarding the rights of divided and
undivided sons in the inheritance of their father in respect to self acquired property. An filter (sic) son excludes the (sic) who had been separated
before and he gets the entire wealth of the father whether acquired before partition or after partition to the exclusive of the sons who had (sic) if
one of the separated sons has reunited with the father than the after born son has got to share it with this reunited son. It is not reasonable to (sic)
that if a father separates two of his (sic) and remains joint with two others, then the entire wealth of the father, that is to say the rest of the self-
acquired property, will be shared by the after-born son and the sons who have remained joint with him, or can it be argued that the after born son
will exclude those sons also who hive not been separated. I think I am right when I say that the joint sons and the after-born son will share (sic) in
the self-acquired property of the a pier after the father''s clear to the, exclusion of the separated (sic). It would be opposed to all principles of
equity and commouseuse if one were to hold that the after-bore son will get the whole property to the exclusion of the sons who have remained
joint with the father at the time when the after-born son came into existence but will have to share it with the reunited sou.
115. The reunited son does not differ in principle from the son who was never separated at all, aid if it be argued that the reunited son brings
certain effects of him and throws them into the common stock of the father it may in some cases happen that the effects which the reunited son
brings does not augment the share of the after-born son but really reduces it, since it my well happen that the property in the(sic) of the father
which would go solely to the after born son might be very much more that the effects which the reunited son brings back with himself.
116. As page 381 Mulla in his Principles of Hindu Law, 9th Edition, says:
Next suppose that A docs not separate from all the three sons, but separates from (sic) and remains joint with C and IX and is subsequently horn
to A In this case on A''s death C, D (sic) will all take in equal shires the portion of the joint property allotted to A, C and D at the partition and also
A''s separate property, that is to say, the separate property of A and the portion of the joint family property allotted to A, C and D at the partition
will he divided equally among C, D and the after born son F.
117. The late Sir Ganganatha Jha in his book on Hindu Law in its Sources, Vol. II, collects all the texts relating to after-born sons and reunited
sons. At page 347 he says:
If a son is born after partition, he shill receive the'' property of the father alone, (sic) if any other sons had been reunited he shall share it with
them�(Manu 9 216; Narada, 1343)(Quoted in (sic) p. 729, Mitakshara, p. 651, Madanaparijata p. 653, Vivadaratnakara, p. 538;
Vivadachintamani, p. 228. Vivadachandra, 20-1-8; (sic), p. 711; (sic), p. 340; Dayabhaga, pp. 24, 130; Viramitrodaya, pp. 590, 591; (sic) p.
104).
At page 351 the learned author says:
The ''self-acquired property of the father-divided from his sons goes entirely to the son born after that partition, those born before have been
''declared to have no right over it. In regard to property as also to debts, gifts, pledges and purchases, they have no concern (sic) each other,
except in regard to (sic)(due So death and birth) and (sic) 25 19-20).(sic), p. (sic), p. (sic) Vivadaratnakara, p. (sic); Vivadachintamani, p. 22),
(sic) pp. 710-711; (sic) p. 104 Viramitrodaya, p. 590, (sic)
118. The rights of the after-born son have received judicial recognition, see the case of Nawal Singh v. Bhagwan Singh (1882) 4 All. 427.
119. There is a well known book Saraswati Vilasa written by the King of Orissa a book which is of great authority in Dra-vida or Madras School,
but which has also been approved by their Lordships of the Privy Council in matters arising under the Mitakshara Law, see AIR 1931 268 (Privy
Council) and in this book at page 145 in Setiur''s Translation occurs paragraph 235 which runs as follow:
Where a father has two or three or many sons and (sic) divided with some and undivided with others, property acquired by him shall be divided
after his death only among his undivided sons
120. Prima facie this is a direct text on point which we are discussing, but it is argued that paragraph 233 (sic) in the paragraphs which (sic) with
the rights of the son born alter partition I doubt very-much if the Sanskrit text has got a heading like the one which we have in the Translation, for
the heading appears in italics but even assuming that paragraph 235 means that, where a father has two or three or more after-born sons and is
divided with some and undivided with others of them property acquired by him shall be divided after his death only among his undivided after-born
sons. This would then be a clear text for the proposition that as amongst the after-born sons the undivided sons will exclude the divided sons.
There is no such magic in the after-born sons that as amongst the n the undivided sons have preference over the divided sons and the same
principle will not operate when there is a competition between the divided sons and undivided sons, pure and simple.
121. A different result was obtained by the learned Judges of the Oudh Chief Court, but with all respect I venture to suggest that they laid undue
emphasis upon what was observed by their Lordships of the Privy Council in Katama Natcher''s case (1863)9 Moo. IA 539 where it was
observed that
there was community of interest and unity of possession between all the members of the family
so far as the joint family property was concerned and as there was no such community of interest and unity of possession between the father and
sons joint with him in the case of self-acquired property the undivided sons did not exclude the divided ones and partition did not annul the filial
relation nor the right of succession incidental to such relation, But as was observed by Niyogi J. in the Nagpur case,
the self-acquired property of the father though capable of being alienated at the will of the father becomes ancestral when at his death it devolves
on his son. In so far as the son is undivided or reunited or born after partition between the father and his other sons, his status vis-a-vis his father is
that of a co-owner. Consequently, the self-acquired property left by the father would be in the nature of an accretion to his interest in the joint
property and when it devolves on the undivided, the reunited or the son born after partition, it does so as if it were co-parcenary property. Hence
the preference accrued to the undivided son in respect of succession to the self-acquired property of the father.... The self-acquired property of the
father is thus in its nature a coparcenary property vis-a-vis his (undivided) son who therefore takes it on his father''s death as a surviving co-
parcener. It must, therefore, follow that a son who does not fulfil the condition of being a co-parcener with his father is not entitled to the father''s
self-acquired property.
122. The learned Judges of the Oudh Chief Court were further influenced in their decision by the case of Kunwar Bahadur v. Madho Prasad
(1919) 17 ALJ 151 : AIR 1919 All. 223 (1), but a careful reading of that case makes it clear that the competition in that case was between the
son living with his father and a son, living away from the father and it w s hell in that case that the mere fact of separate living did not operate as a
division and naturally the son living away was held equally entitled with those living with the father to succeed.
123. Waller J. in Narashimham v. Narasimham (1932) 55 Mad. 577 : AIR 1932 Mad. 361 discussing Kunwar Bahadur''s case (1919) 17 ALJ
151 : AIR 1919 All. 223 (1):
It is a legitimate inference from emphasis laid on the fact that there hid been no partition that, had there been a partition, the decision would have
been in the opposite sense.
124. From what I have said before it follows that by reason of the interest with a son gets in the father''s self-acquired property also from birth, I
am prepared to extend the principle of co-parcenaryship in the case of a father and his joint sons and give to such sons the right to inherit in a
manner akin very much to the right of survivorship. This is the reason for giving a preference to the joint sons over the divided sons who are not
members of the co-parcenary. I think I am on equally and perhaps more solid grounds when I am prepared to give this preference (sic) the
undivided son over the divided son by reason of the argument by way of analogy afforded from the cases of the after-born son and reunited son. I
have given expression to such arguments in the earlier portions of my judgment.
125. In Fakirappa''s case (1896) 22 Bom. 101 Jardine J. referred to certain grievous inconveniences which would follow if the contrary view was
taken and relying on the case of Katama Natchear v. The Rajah of Shivagunga (1863) 9 Moo. IA 539 held that one is entitled to consider these
inconveniences and said:
It would stimulate unpleasant litigation. It would interfere with the power of the father and the sons remaining in union with him to provide for a
separating son by giving him when he demands partition something more than his proper share of the ancestral property. That can be reasonably
done when the self-acquired property left with the father or in the co-parcenary (sic) sufficient to make good provision for those who do not
choose to separate. But such reasonable family arrangements would be hampered if the father were at once obliged to protect himself by resorting
to gift or will in order to prevent the separating son making claim on the death of the father to share in the self-acquired property. A partition would
thus be complicated with the arrangements of a testamentary sort and premature.
126. I might add to the inconveniences and hardships enumerated by Jardine J. A father is possessed of self-acquired property and has four sons.
One of his sons does not pull on well with the rest of the family and the father gives him a one-fourth share and separates him. Later on the fisher
dies intestate. It would not be fair to give to the separated son another fourth share out of the remaining three fourths. It may be that when the son
separates he gives a sort of undertaking that he would claim no further share in the inheritance at the time of the father''s death and if he is permitted
to claim a share again he would be (sic) from the undertaking given before. Let it be understood here that I am not deciding the question as to
whether in law he is entitled to resile from the undertaking or not, but I am only looking at the equitable aspect of the question. Again a father may
separate one of his own sons after giving him a portion of his self-acquired property. Later he remains joint with his sons and on account of
adversity and the growing needs of the family he is compelled to part with a great deal of the property that was reserved by him for himself and his
joint sons; and when the father dies, if the separated son is allowed to take a share in the balance of the property, his own share would be
considerably augmented to the detriment of the sons who had the merit of remaining joint with the father. Then again only that portion of the
property which has remained with the father will be liable for debts taken by the father after partition and the property taken away by the separated
son will be immune. It may also be that the father who has separated one of his sons and has remained joint with the others has had his self-
acquired property greatly augmented by the time of his death owing to the exertions of his joint sons and it would obviously be inequitable that the
separated son who has contributed nothing towards this augmentation should be permitted to share in the same after the father''s death.
127. I would, therefore, answer the question referred to us in the affirmative.
Hamilton J.
(April 15, 1942)
128. The question which has been referred to the Full Bench is as follows:
On the death of a Hindu leaving self-acquired property do the undivided sons succeed to such property to the exclusion of the divided son under
the Mitakshara Law?
129. There was at first a view that the sons had from birth an interest in the self-acquired property of the father so that he had not the power to
deal with it as he liked and it was a co-percenary so that on his death the property devolved by survivorship and not by inheritance.
130. In Balwant Singh v Rani Kishori (1898) 20 All. 267, their Lordships of the Privy Council decided that there was a conflict between
Mitakshara Ch. 1 Section 1 Clause 27 and Sections IV and V and the latter prevailed with the result that the father had absolute power over his
self-acquired property.
131. The first text contained moral and religious consideration but the latter contained positive laws.
132. In Katama Natchiar v. Raja of Shivagunga (1863) 9 Moo. IA 539, their Lordships of the Privy Council dealt with the second contention and
stated:
But the law of partition shows that as to the self-acquired property of one member of a united family the other members of that family have neither
community of interest nor unity of possession. The foundation therefore of a right to take such property by survivorship falls.
133. The effect of decisions of their Lordships of the Privy Council was considered in Vairavan Chettiar v. Srinivasachariar (1828) 22 Bom. 101,
a Full Bench decision, where it was held that an undivided Hindu son acquires the self-acquired property of his father by inheritance and not
survivorship.
134. The view expressed in Nana Tawkar v. Ramchandra Tawker (1908) 32 Mad 377 : 2 IC 519 that an undivided son acquired by survivorship
the self-acquired property of the father in preference to the divided son was dissented from as regards the manner of devolution but the point to be
decided was whether a Succession Certificate was required and not the rights of a divided and undivided son.
135. It is I think mainly if not wholly in the belief that survivorship and not inheritance applied that the Bombay and Madras High Courts decided
that the undivided son excludes the divided son and modern writers accepted that view as correct with little or no independant reasoning.
136. It has still been argued that in spite of those decisions of their Lordships of the Privy Council there is some kind of delayed action
coparcenary, if I can use such an expression, so that the sons can do nothing when their father is alive but the coparcenary comes into activity
when the father has died find myself unable to visualize such a peculiar coparcenary and Learned Counsel has not explained what would be the
incidents of it on the death of the father.
137. The sons take by inheritance and not by survivorship as in the Hindu coparcenary and so does the grandson whose father is dead and if the
sons after getting the property can divide the property such division does not prove coparcenary.
138. It appears from the judgment of Kumaraswami Sastri J. in Vairavan Chettiar v. Srinivasachariar (1828) 22 Bom. 101 that Lord Macnaghten
considered that the son had a mere spes successionis and I find it difficult to see what more the son has.
139. Supposing however that the son had some kind of interest by birth I still do not see why he should lose it by partition of the ancestral property
in the lifetime of the father.
140. If a son resides and eats apart from his father but does not at the same time partition the ancestral property he does not ipso facto lose his
rights in that estate and if only part of the property is divided he does not lose all rights in the remainder and I suppose no one would argue that if
there has been partition of the self-acquired property of the father the son who got a share would lose his rights in the ancestral estate.
141. If a son has by birth an interest in the self-acquired property of his father as he has in the ancestral property but that interest only becomes
active at the death of the father why should he not exercise that right then, just as a coparcener who has only partitioned a part of the ancestral
property?
142. If on the other hand the son has no legal right by birth and there is only a moral duty laid on the father to secure equal distribution of his self-
acquired property among his sons either by dividing it in his lifetime or by avoiding a testamentary disposition why should not all the sons share?
143. The position then appears to me to be that the father is as regards his self-acquired property from the beginning just as separate from sons
who are joint with him in ancestral property as from sons who are not and partition of ancestral property will have no bearing on his self-acquired
property.
144. It may be argued here that the position is not the same if there has been partition of the self-acquired property as the divided son has got his
share and if such self acquired property of the father is in existence at his death and is divided equally then the undivided son loses and it may
further be argued that as with ancestral property if the divided son has got his share the undivided should take the rest.
145. As regards the second argument there is the difficulty that there is inheritance and not survivorship and an heir cannot part with his rights in
view of Section 6(a) of the Transfer of Property Act even if he wishes to do so--vide Balkrishna Trimbak v. Savitribai (1878) 3 Bom 54 Amrit
Narayan Singh v. Gaya Singh (1917) 45 Cal. 590 : AIR 1917 P.C. 95. Ananda Mohan Roy v. Gour Mohan Mullick (1923) 50 Cal. 929 : AIR
1923 P.C. 189 and Uma Shankar v. Ram Charan 1939 AWR (HC) 704 : ILR 1939 All 950.
146. On the other hand it does not necessarily follow that the self acquired property at the death of the father should be divided equally.
147. It may be that, if the sons should all take equally allowance should be made for what the divided son has already got.
148. Coming now to decisions of High Courts, they are Fakirappa v. Yellappa (1896) 22 Bom. 101, Nana Tawker v. Ramchandra Tawker
(1908) 32 Mad 377 : 2 IC 519 and Chintapenta Narasimham v. Chintapenta Narasimham (1932) 55 Mad. 577 : AIR 1932 Mad. 361 which give
preference to the undivided son and Badri Nath v. Hardeo (1930) 5 Luck 649 : AIR 1939 Oudh 77 and (at any rate to some extent) Kunwar
Bahadur v. Madho Parshad (1919) 17 ALJ 151 : AIR 1919 All. 223 (1)
149. Fakirappa v. Yellappa (1896) 22 Bom. 101. Ranade J. relied partly on Shivagunga''s (1863) 9 Moo. IA 539 case but this he appears to
have misquoted, to West and Buhler and to the fact that no divided son had previously asserted such a right.
150. I think this decision has been carefully considered in Badri Nath v. Hardeo (1930) 5 Luck 649 : AIR 1939 Oudh 77 and I agree with what
has been said there.
151. I would however add that in my opinion the fact that there was no previously reported case on this question loads to no inference either one
way or the other.
152. As regards the judgment of Jardine, J. I agree with what was said in Bairi Nath. v. Hardeo (1930) 5 Luck 649 : AIR 1939 Oudh 77.
153. Nana Tawker v. Ram Chandra Tawker (1908) 32 Mad 377 : 2 IC 519. This decision was based on the belief that some took by
survivorship.
154. Chintapenta Narasimham v. Chintapentasimham (1932) 55 Mad. 577 : AIR 1932 Mad. 361. This was based on the principle that the self-
acquired property of the father becomes part of the joint property of united sons and as the divided son no longer belongs to the coparcenery he
can take no share in it.
155. With all respect to the learned Judge; if the argument is what I understand it to be, it can only hold good on the presumption that there is what
I have termed a delayed action coparcenary between the father and the sons and this appears to me to be negatived by their Lordships of the Privy
Council at any rate as understood by Lord Macnaghten and the Madras Full Bench.
156. So much of the self acquired property of the father as does go to undivided sons may become joint family property when it has got there so
that succession to one of those sons is by survivorship and in his life time he may not have absolute power of disposal but the question which has to
be decided first is what goes to the sons.
157. The learned Judges referred to Kunwar Bahadur v. Madho Prasad (1919) 17 ALJ 151 : AIR 1919 All. 223 (1) but they were under a
misapprehension as the family had no ancestral property at all.
158. Badri Nath v. Hardeo (1930) 5 Luck 649 : AIR 1939 Oudh 77. This case was if I may venture to say so very carefully reasoned after
considering other decisions and various placita of the Mitakshara.
159. Kunwar Bahadur v. Madho Prasad (1919) 17 ALJ 151 : AIR 1919 All. 223 (1). As there was some doubt as to the force of the decision I
examined the whole case.
160. The Plaintiffs alleged that they were joint with the father and the Defendants were not and they claimed property left by the father.
161. The Defendants said that the property was ancestral and therefore they had a right as co-parceners but if it was self-acquired property of the
father they still were entitled as heirs and the Plaintiff were just as separated as they were.
162. The first court held that the property was self-acquired that the Defendants lived entirely separate, maintaining themselves on property which
they got from the widow of their grand father''s, brother, while the Plaintiffs lived jointly with their father. It decreed the suit apparently giving
preference to sons whom it considered to be joint against sons whom it considered to be separate.
163. There had been no partition but there could not have been any, for there was no ancestral property and the self-acquired property of the
father could not be partitioned and there could not hive been any greater separation in the circumstances.
164. The learned Judges who decided the appeal held that if this property was ancestral then the Defendants in the absence of a partition wire still
coparceners but if, as the first court had found, the property was self acquired then all the sons were equally entitled.
165. As there had been no partition this case does not decide that a partitioned son takes equally with the others but I think that it does decide that
a separated son takes equally with the others.
166. Finally there is a case Shamrao Bhaurao Maratha v. Krishnarao Bhaurao Marathe AIR 1941 Nag. 297 in which it was held that a brother A,
living with another B and a third C separated from him (B) were entitled to equal shares in the self-acquired property of the deceased brother.
167. A distinction was made between the case of a father and sons and the case of brothers and it was merely taken for granted, in view of the
decisions referred to, that the undivided son was preferred.
168. It has then been argued that an undivided son is in the same position as a reunited son and so should be preferred. The Viramitrodaya
however distinguishes between the reunited son when there is a son born after partition and the reunited son when there is not.
In Ch. IV, 12 it is stated:
If it be argued that--the reunited sons alone should inherit the estate of the father when there are both reunited and unassiciated sons, the answer is
that the argument is not tenable.
Besides, ownership in the property of the father or other ancestor is to be held to be caused by sonship etc. alone, if not attended with degradation
and the like disqualification, but not also if attended with reunion, by reason of multiplicity: and as the sonship etc belong equally to all the male
issue, whether reunited or not, therefore the succession to their property of all the sons and the like without distinction is proper.
Nor can it be said, that right (of the sons etc. as such) to the property of the father and the other ancestors ceases by partition.
But if a son be born after partition, then (agreeably to what is said above, also) the sons who have been previously separated would have been
entitled to the father''s property, but they are debarred by the text of Brihaspati namely--Those born before partition are not entitled to the share of
the parents. Whatever is acquired by a father separated from the son belongs entirely to one born after partition.
169. It seems to me that there is good reasons to distinguish between the case when there is a son born after partition and the case when there is
not.
170. In Mitakshara Ch. II Section 9 placitum 2 it is stated:
Effects which had been divided and which are again mixed together arc termed reunited. He to whom such appertain is a reunited parcener.
171. The reunited son would have mixed again with his father what he hid obtained and what had been the self acquired property of the father
would reacquire that status.
172. The son born after partition had he not been made to share with the reunited son would have excluded the reunited son but the partition
would not be annulled by the birth of a son after it and the partitioned son would keep what he had obtained.
173. The reunited son then would have been in the worst position. If however there is no son born after partition there is no one to exclude the
reunited son.
174. The tights of the son born after partition are also considered in the Sarasvati Vilas Clauses 227-248 and the rights of reunited sons are also
considered and the result as far as I can see is the sans as in the Viramitrodaya.
In Clause 234 it is stated:
The son born after partition shall divide with such of the brothers as lived in reunion with the father after-partition, as Manu says Let him divide with
those who were reunited with him (the father).
but at 758 if it be said that sons reunited with the father take his wealth and that sons not reunited with the father do not take his wealth, just as the
son born after partition takes the wealth of the father and not other sons.
759 Not so.....
763 Therefore that the ownership of re-united and not re-united sons, in the-paternal wealth is equal is only reasonable.
175. In view of these texts I do not see how one can say that in the absence of a son born after partition the reunited son is to be preferred to the
son reunited and I do not see on what principle the united son should be preferred to the reunited.
176. If there was a united son, a reunited son and a non-reunited son who had already got his share in the self-acquired property of his father why
should the reunited son be the one who got nothing at all?
177. To sum up I come to the following conclusion.
178. The united son is no better than the reunited son and there is clear and ancient? authority to the effect that when there is no son born after
partition the reunited and non-reunited share equally.
179. There is no coparcenary of father and sons in the self acquired property of the father and therefore no reason to prefer an undivided to a
divided son but if there has been division, of the lather''s self acquired property so that the divided of son has got something it may be that at the
death of the father the property has to be so divided that the sons finish up with equal shares.
180. If however, there is some kind of coparcenary then partition of ancestral property does not put an end to it.
181. My answer to the reference is that undivided sons do not exclude the divided son.
Collister, Bajpai and Hamilton JJ.
(April 15, 1942)
182. Having regard to the view taken by the majority of the judges on this Full Bench, we answer the question referred to us in the affirmative.
Collister and Bijpai JJ.
(April 22, 1942)
183. This suit of the, Plaintiff Ganesh Prasad for partition of what he alleges to be the joint family property of himself and Defendants Nos. 1 to 7
and Defendant No, 16 was dismissed by the second Subordinate Judge of Cawnpore and hence he has filed the present first appeal.
184. We now come to the question of the will, The will alleged by the Defendant is an oral will and according to what has been stated by their
Lordships of the Privy Council as early as 1867 in Baboo Beeri Pertab Sahee v. Maharajah Rajender Pertab Sahee (1867) 12 Moo. IA 1 at p.
28 such a will must be proved in a very strict manner. Their Lordships say:
But if any party is bound to strictness of pleading, it is he who sets up a nuncupative will. He who rests his title on so uncertain foundation as the
spoken words of a man, since deceased, is bound to allege, as well as to prove, with the utmost precision; the words on which he relies, with
every circumstance of time and place.
185. Again in AIR 1931 285 (Privy Council) their Lordships say:
The onus of establishing, an oral ''will is alwavs a very heavy one and in this connection their Lordships may refer to the ruling of this Board for the
guidance of Courts in India in dealing with Oral wills in Baboo Beer Pertab Sahee v. Maharajah Rajinder Pertab Sahee (12 Moo. I.A. 1 at 28)
that they must be proved with the utmost precision and with every circumstance of time and place.
186. The same view was reiterated by their Lordships of the Privy Council in the case of Mahabir Prasad v. Mustafa Husain 1937 AWR 992,
187. Bearing these observations in view we have come to the conclusion that although the witnesses produced by the Defendants in this connection
may not be speaking the untruth, they do not prove the oral will set up by the Defendants. We have already referred to these witnesses in an earlier
portion of our judgment. They are Krishna Behari, Chandrabhan, Bhagwan Das and in an indirect manner Manmohan Dayal and Ram Lal also
support the will. It is not necessary to discuss their evidence in detail, but a perusal of their evidence leaves an impression on one''s mind that they
do not prove the alleged will ""with precision and with every circumstance of time and place."" In respect to the will we arrive at a finding different
from that at which the Court below arrived and hold that the contesting Defendant has not been able to establish the oral will of Ajodhya Prasad.
188. The Plaintiff then contends that if the oral will is not proved then the Plaintiff, although separated, is entitled to inherit the self-acquired
property of Ajodhya Prasad along with the son or sons who remained joint with him. On the 10th of March, 1942 we referred to a Full Bench the
following question of law:
On the death of a Hindu leaving self acquired property do the undivided sons succeed to such property to the exclusion of the divided son under
the Mitakshara Law""?
189. The view of the majority of the Full Bench was that the undivided sons succeed to such property to the exclusion of the divided son and that
being so, the Plaintiff is not entitled to succeed to the self acquired property of Ajodhya Prasad and it has already been held that the main items of
the plaint property are the self-acquired property of Ajodhya Prasad.
190. We have already said that the court below dismissed the Plaintiff''s suit with certain reservations. It held that the Plaintiff would be entitled to
retain possession of the Mathuri Mahal house (list No. 6 of the plaint) and moveables (list No. 3 of the plaint). It also held that the house in Lathi
Mohal was the exclusive property of Ram Lal, Defendant No. 14 and the family of Ajodhya Prasad had nothing to do with the same. No
arguments have been advanced before us so far as this finding of the court below is concerned and we affirm the same. For the rest, in view of
what we have said above this appeal is dismissed with costs.
