Girdharilal Gangrade v. Fatehchand Gangrade — 1954 DIGILAW 72 (MP)

JUDGEMENT : DIXIT, J. This is an appeal from the preliminary decree of the Court of District Judge, Indore in the plaintiff-respondents' suit for the partition and possession of immovable and movable properties mentioned in schedules "A", "B" and "C" of the plaint under a claim of being the heirs of Chhaganlal, the last full owner. The appellant Girdharilal and the respondent Fatechand are the sons of Chhaganlal. The other appellants Rajendra Kumar, Narendra Kumar, Surendra Kumar, Ramchandra and Shyam Sundar ate the sons of Girdharilal; while the respondent Jageshwar Prasad is the son of Fatechand. 2. The case of the plaintiff Fatechand is that his father Chhaganlal was in the service of Central Provinces Government as Extra Assistant Commissioner and as Assistant Settlement Officer till 1918 when he retired; that thereafter Chhaganlal took up employment as Assistant Settlement Officer first in Rajnandgaon State and then in Khairagarh State, retiring from the service of the latter State in 1926; that at the time of his retirement Chhaganlal had large savings and had also received Rs.10,000/- as provident fund; that in 1928 Chhaganlal came to Indore and settled down there; and the defendant Girdharilal also came to Indore with Chhaganlal, while he i.e., the plaintiff Fatechand continued to live in C.P., where he was in Government service; that Chhaganlal who had considerable cash with him deposited it with various Banks in Indore; that in the year 1929 he also purchased benami an old house situate on Jail Road, Indore for about Rs.8000/- in the name of his wife; that Girdharilal who was a District Court pleader in Holkar State did not earn anything, lived with Chhaganlal and depended solely on his father's savings and pension; that after the death of Chhaganlal in 1939, Girdharilal rebuilt, out of the moneys left by Chhaganlal, the house purchased in the name of his mother Gangabai; that a few days before the institution of the suit Gangabai died and thereafter the plaintiff asked Girdharilal to agree to an amicable partition of the property left by Chhaganlal but that the defendant was evading the issue. On these allegations the plaintiff Fatechand prayed "that a decree for partition by metes and bounds be passed in respect of the entire joint property described in schedules A, B and C after getting such clarification as to details and whereabouts of the cash balance as are essential to do complete justice between the parties and to give full effect to the findings of this Court as regards the right of the plaintiff in the entire property belonging to the deceased Chhaganlal, the father of the parties." The suit as originally instituted was by Fatechand against Girdharilal alone. But on 4-10-1948 Jageshwar Prasad the son of Fatechand applied for leave for being made a party to the suit stating that the property in suit was ancestral property in which he had a share. This application was granted by the learned District Judge on 11-1-1949 on the ground that even if Jegeshwar Prasad was not a necessary party to the suit, his addition as a plaintiff in the suit was necessary in order to enable the Court effectually and completely to adjudicate upon and settle all questions involved in the suit and in order to prevent multiplicity of suits. On 30-7-1949 the plaintiff Fatechand applied for the addition of Rajendra Kumar, Narendra Kumar, Surendra Kumar, Ramchandra and Shyam Sundar sons of Girdharilal as defendants in the suit. This prayer was also granted. 3. The defendant Girdharilal while admitting that Chhaganlal was in service in C.P. Raj-nandgaon and Khairagarh and that after his retirement from service came to Indore in 1929, denied that Chhaganlal had accumulated large savings or that he made Indore as his permanent place of residence. Girdharilal pleaded that Fatechand separated from the deceased Chhaganlal from the date Fatechand joined service in C.P. in 1918, and remained separated at the death of Chhaganlal; that after separation Fatechand and his family resided in his own house at Jabbulpore; while he himself continued to be joint with his father, lived with him at Indore and that Chhangalal's income was blended with his own income, which was by no means meagre or negligible. Girdharilal admitted that in 1929 a house on Jail Road, Indore was purchased in the name of his mother Gangabai, but he averred in para 9 of the written statement that the transaction was not benami or for the benefit of Chhaganlal; that after Chhaganlal's death the house was rebuilt by him out of the funds belonging to the joint family of Chhaganlal and himself. In para 16 of the written statement he, however, stated that this house was rebuilt at a cost of about Rs.30,000/- consisting partly of the proceeds of the sale of Gangabai's ornaments and partly of the money advanced by him and that on 22-3-1948 Gangabai made a gift of this house to Rajendra Kumar and his four sons. Girdharilal also took the objection that the suit was barred by limitation, and denied the extent and the value of the properties mentioned in lists B and C of the plaint. He contended that even if Chhaganlal purchased the house benami in the name of his wife, Fatechand had no claim to it for the reason that the property was acquired out of the nucleus consisting of his own income blended with the income of Chhaganlal with whom he constituted a joint Hindu family and that Fatechand separated from this family in the year 1918. In the alternative Girdharilal claimed that even if the property left by Chhaganlal was his separate property, he being an undivided son was entitled to inherit it to the exclusion of Fatechand who had separated in 1918, and who after the death of his first wife married again in 1931 under the Special Marriage Act, 1872 and that under that Act the marriage effected Fatechand's severance from the family. The answer of the remaining defendants to the plaintiff's claim was substantially the same as that given by Girdharilal. 4. On these pleadings five important questions arose for decision in the lower court and the same questions arise for decision also before us. The answer of the remaining defendants to the plaintiff's claim was substantially the same as that given by Girdharilal. 4. On these pleadings five important questions arose for decision in the lower court and the same questions arise for decision also before us. They are: (1) Whether Fatechand separated from his father in 1918; (2) Whether Fatechand's admitted second marriage in 1931 under the Special Marriage Act had the effect of his severance from an undivided family and of destroying his right of inheritance to the self-acquired property of Chhaganlal; (3) Whether the transaction of the purchase of house No.61 situate on Jail Road Indore in the name of Chhaganlal's wife was a benami transaction and whether the house was rebuilt by Gangabai and Girdharilal with their own money; (4) Whether Gangabai had a right to bequeath or gift away the house to Girdharilal's sons and whether the will and the gift deed set up by the defendants Rajendra Kumar and his brothers are valid and effective; (5) and whether the plaintiffs' suit was within limitation. The learned District Judge found that Fatechand did not separate from his father in 1918; that his second marriage in 1931 under the Special Marriage Act had the effect of severing his status as a member of the undivided family consisting of himself, his son Jageshwar Prasad, Chhaganlal, Girdharilal and Girdharilal's sons; that this statutory partition in 1931 did not destroy Fatechand's right of inheritance to the separate property of Chhaganlal; that even if it is held that under the Hindu Law a father's self-acquired property goes by survivorship and that a separated son is not entitled to a share in the self-acquired property left by the father at his death, when at such time the father was in union with his other sons, still Jageshwar Prasad would be entitled to a half share in the property left by his grand-father Chhaganlal; that the house in suit was purchased by Chhaganlal in the name of his wife with his own funds and was a benami transaction; that it was rebuilt by Gangabai and Girdharilal out of moneys left by Chhaganlal; and Gangabai had no right to gift the house or dispose it of by a will and that the will and the gift deed could convey no title to Girdharilal's sons; and that the plaintiffs' suit was within time. 5. 5. In the course of his arguments Mr. Rege learned counsel for the appellants assailed all these findings and also said that the learned District Judge did not properly determine the extent of the property liable to partition and that the decree was not in accordance with the judgment. Before considering the points which arise in this appeal, it would be convenient to dispose of the suggestion of the learned counsel for the appellant that the plaint did not state clearly the status and the capacity in which Fatechand claimed partition of the properties in the suit. It is true that the plaintiff Fatechand could have stated more precisely than he did that he was claiming a share in Chhaganlal's separate estate to which he, as his son was entitled to succeed. But the appellants took no objection to the form of the suit and indeed they answered the suit and went to trial on the footing that the plaintiff Fatechand's suit for partition was under the claim of being an heir of his father Chhaganlal, the last full owner. The appellant cannot now be heard to say that the suit was not properly framed. 6. The first point that required to be considered is whether Fatechand separated from his father in 1918. The burden of proving that Fatechand separated in 1918 was on the appellants. But they have totally failed to establish the fact. From the deposition of Girdharilal it is clear that his allegation that Fatechand separated from the joint family in 1918 rested solely on the circumstances that from the time of his joining service in C.P., Fatechand lived at different places, separate from his father and earned his own independent livelihood and did not mix his income with the family income. Mr. Mr. Rege learned counsel for the appellant contended that in this case there could be no evidence of a former partition because in 1918 there was no joint family property which could be divided; that there could be partition without there being any joint family property, as all that was necessary to constitute a partition was a definite and unequivocal indication of his intention by a member of a joint family to separate himself from the family; and that, therefore, where there was no joint property to divide, the only evidence to prove separation would be of circumstances such as separate residence, separate business and others of a like nature and the conduct of the members of the family and the attendant circumstances. Learned counsel referred us to - 'Durga v. Lal Bahadur', AIR 1928 Oudh 509 (A), there it has been laid down that in a case where persons belonging to a Hindu family have been living for a long time separate from one another and their property has also been separately dealt with, it would not be necessary to ask for evidence of separation, and that if the conduct of the members of the family is consistent only with separated status of family, that must be the conclusion drawn from the facts proved irrespective of the question that there is no formal proof of separation. Now, it is quite true that under the Hindu Law there can be a partition even when there is no joint family property to divide. In Setlur's Translation of "Hindu Law Books on Inheritance" (1191 Edn.) Para 2 of S.3 of the Vyavahara Mayu-kha has been translated at page 66 thus: "Even when there is total failure of common property a partition may also then be made, by the mere declaration "I am separate from thee"; for a partition merely indicates a state of the mind. Transactions relating to partition are only declaratory of this mental state." 7. The evidence of partition must, therefore, indicate the above stated "mental state" i.e., the definite and unambiguous intention of member of a joint family to separate himself from the family. Here, this could not be proved by the evidence of division of property as admittedly there was no joint family property. The evidence of partition must, therefore, indicate the above stated "mental state" i.e., the definite and unambiguous intention of member of a joint family to separate himself from the family. Here, this could not be proved by the evidence of division of property as admittedly there was no joint family property. We must, therefore, look to the evidence of the circumstances such as separate residence, separate business and the conduct of the members of the family and determine whether that evidence is sufficient to rebut the strong presumption of union in the case of brothers and father and whether it is only consistent with separated status of Fatechand. In my opinion the evidence surveyed as a whole leads to the conclusion that there was no separation of Fatechand from the joint family in 1918. The following facts have been amply established and have not been disputed before us. They are: (a) Chhaganlal retired from C.P. Service in 1918 and in the same year Fatechand joined C.P. Provincial Service. After his retirement Chhaganlal took up employment in Rajnandgaon and Khairagarh States as Assistant Settlement Officer. Chhaganlal and Fatechand thus had to be at place where they were posted. Their living separate was on account of their being in service and not because of the fact that they had "separated". Chhaganlal often used to visit Fatechand and live with him in C.P. Chhaganlal's wife Gangabai also visited Fatechand at place, where he had been posted and stayed with him for long periods. In 1919-20 Fatechand was posted at Raipur and in that year the defendant Girdharilal lived with him and studied at Government High School Raipur; (b) in 1920 Fatechand sent Rs.1200/- to Chhaganlal for meeting a part of the expenses of marriage in the family. This is clear from the letter Ex. P.13 which Fatechand wrote on 3-5-1920 to Chhaganlal advising him of the remittance, stating that the amount of Rs.1200/- included Rs.350/- which he had drawn on account of his pay increment and giving instructions as the ornaments that should be prepared; (c) Sometime before the second marriage, Fatechand wrote a letter Ex. This is clear from the letter Ex. P.13 which Fatechand wrote on 3-5-1920 to Chhaganlal advising him of the remittance, stating that the amount of Rs.1200/- included Rs.350/- which he had drawn on account of his pay increment and giving instructions as the ornaments that should be prepared; (c) Sometime before the second marriage, Fatechand wrote a letter Ex. D 1 to his father Chhaganlal complaining of the indolence of Girdharilal, expressing his resentment at the indulgence shown by Gangabai to Girdharilal, voicing his protest against the determination of Gangabai to deprive him of his rights in the property and asking his father to set at rest his doubts and fears by taking immediate action; (d) on the eve of Fatechand's second marriage Chhaganlal wrote a letter dated 21-9-1931 (Ex. P.23) to him, conveying the assurance that he or his wife Gangabai or Girdharilal had no idea of excluding him "from any property movable or immovable whatever we may have today or hereafter." In the letter Chhaganlal also suggested to Fatechand to draw up a scheme and prepare a draft deed in consultation with Mr. Sitacharan Dube, a pleader of Hoshangabad. Chhaganlal also said in the letter "you have full one half share in my property even today and afterwards." Relying on the statement in the letter, namely "certainly you cease to be a member of the joint family because you live quite separately, you may make your own earnings, may make your own saving or not," Mr. Rege said that it showed that Fatechand had already separated. I do not agree with the learned counsel. The above statement has to be understood in the context in which the letter had been written and along with the other statements in the letter. It cannot be wrenched from the background that Fatechand had protested to his father about what seemed to him the intention of Gangabai and Girdharilal to deprive him of his rights in the property. In this background and the context of the letter the statement alluded to above means, not that Fatechand separated, but that he may separate if he wishes to, and implement his intention; (e) In 1933 Chhaganlal sent Rs.1500/- to Fatechand for the purchase of a motor car which Fatechand needed badly; (f) In 1931 Jageshwar Parasad who was a boarder in Mrs. Cameron School, Indore, used to live with Chhaganlal and Girdharilal during holidays and week-ends. In 1943 while studing in Medical School in Indore, Jageshwar Parsad lived with Girdharilal who acted as his local guardian; (g) In 1939-40 and 1943 i.e., after the death of Chhaganlal, Fatechand wrote letters Ex. D.2, D.3 and D.4 to Girdharilal asking Girdharilal and Gangabai to give him a full idea of the moneys and property left by Chhaganlal and suggesting that the matter of the division of the property should be settled without delay and unpleasantness. Girdharilal did not reply to these letters; and at no time did he say to Fatechand that he had already separated and had no right to the property; (h) After the death of Chhaganlal, Fatechand and Girdharilal jointly made a claim for the receipt of the arrears of pension due to Chhaganlal. 8. On this evidence there can be no doubt that Fatechand did not separate from his father in 1918, that all along upto 1931 and thereafter also he considered himself a member of the family and asserted his right in the property of Chhaganlal. The letters Ex. D.1 and Ex. P.23 clinch the issue of separation in 1918 and unmistakably point to the conclusion that there was no separation in 1918. The evidence bearing on the point has been fully discussed by the learned District Judge; and I see no reason to disagree with him as to his estimate of that evidence and with the conclusion that there was no partition in 1918 and that Fatechand did not separate from Chhaganlal in that year. 9. Turning now to the question of the effect of Fatechand's admitted second marriage in 1931 under the Special Marriage Act, the argument of Mr. Rege learned counsel for the appellant was that u/s. 22 of that Act the marriage operated as a severance of the joint status as between Fatechand and other members of the family and extinguished the right of survivorship as between Fatechand and his co-parceners; that under the Hindu Law the sons acquire an interest in their father's self-acquired property by birth and on the father's death, the sons who form a joint family with him take it by right of survivorship; and that, therefore, Girdharilal who remained joint with Chhaganlal would be entitled to Chhaganlai's property to the exclusion of Fatehchand. In reply Mr. In reply Mr. Chitale for the respondent said that Fatehehand's marriage in 1931 had no doubt the effect of his severance from the undivided family but nonetheless under S.23 of the Special Marriage Act, Fatehehand's right of succession to Chhaganlai's property whether by inheritance or by survivorship, could not be impaired by reason of his having married under the Act. It was said that S.23 spoke of the rights and disabilities of a person marrying under the Act, in regard to his right of succession and not in regard to his right of inheritance only; that the word "succession" was a general word of wide import and covering both succession by survivorship as well as succession by inheritance; and that, therefore, the Caste Disabilities Removal Act, 1850 though it dealt with rights and disabilities in regard to the right of inheritance, must in its applicability, by virtue of S.23, Special Marriage Act, to a person marrying under that Act, be read as preserving the right of survivorship of the person marrying under the Act. Learned counsel for the respondent cited several authorities to point out that there was some conflict on the question whether sons succeed to the self-acquired property of their father by inheritance or by survivorship. But if I understood him rightly, he did not seem to be inclined to dispute the proposition that the sons acquire an interest in their father's self-acquired property by birth and that this property goes by survivorship. I will consider this question of Hindu Law later on. At this stage it would be convenient to deal with the statutory provisions of the Special Marriage Act, 1872 and the Caste Disabilities Removal Act, 1850 (Act 21 of 1850). 10. That the marriage under the Special Marriage Act of any member of an undivided Hindu family operates to sever him from the co-parcenary cannot, in my judgment, admit of any doubt. Section 22 of the Act is clear enough. 10. That the marriage under the Special Marriage Act of any member of an undivided Hindu family operates to sever him from the co-parcenary cannot, in my judgment, admit of any doubt. Section 22 of the Act is clear enough. It reads: "The marriage under this Act of any member of an undivided family who professes the Hindu, Buddhist, Sikh or Jain religion shall be deemed to effect his severance from such family." As to the rights of such a person S.23 says: "A person professing the Hindu, Buddhist, Sikh or Jain religion who marries under this Act shall have the same rights and be subject to the same disabilities in regard to any right of succession to any property as a person to whom the Caste Disabilities Removal Act, 1850, applies; ......" 10a. The enacting part of the Caste Disabilities Removal Act, 1850, is contained in one clause which is as follows: "So much of any law or usage now in force within the territories subject to the Government of the East India Company as inflicts on any person forfeiture of rights or property, or may be held in any way to impair or affect any right of inheritance by reason of his or her renouncing, or having been excluded from the communion of, any religion, or being deprived of caste, shall cease to be enforced as law in the Courts of the East India Company, and in the Courts established by Royal Charter within the said territories." 11. It will be seen that the Caste Disabilities Removal Act abrogated the rule of Hindu Law under which change of religion and loss of caste constituted grounds of forfeiture of property and of exclusion from inheritance. The Act provides against the forfeiture "of rights or property" of any person by reason of his conversion or exclusion or deprivation from caste and protects any right of inheritance of such person. It deals with two types of rights, namely, (1) "rights or property" that is to say rights which vested in a person prior to his conversion or exclusion or deprivation from caste; (2) any right of inheritance i.e. inchoate rights of the nature of spes successionis. It must be noted that the Act does not preserve the rights of survivorship which a person had under Hindu coparcenary prior to his change of religion or loss of caste. It must be noted that the Act does not preserve the rights of survivorship which a person had under Hindu coparcenary prior to his change of religion or loss of caste. Dealing with the scope of the Caste Disabilities Removal Act, Wallace J., pointed out in - 'Subbayya v. Rangayya', AIR 1927 Mad 883 (B) that: "It (i.e. the right of survivorship) is not a vested right but only a contingent right, contingent, that is, on there being no partition in the family, with partition it ceases to exist. Conversion creates partition by operation of Hindu Law itself and therefore the right of survivorship does not survive, any more than it would survive if partition had been effected in the ordinary way. Act 21 of 1850 does not assist the convert since the right of survivorship is not a right which the convert forfeits or which has been impaired on account of his conversion. Any partition without conversion would have deprived him of that right. To hold that the convert retains the right of survivorship after partition is to lay down that conversion puts him in a better position than he was before conversion. He has chosen to separate and he cannot claim to continue rights which flow from non-separation. I cannot see, therefore, how this right of survivorship is the sort of substantial right to which Act 21 of 1850 was intended to apply." 12. The Act, thus, has not the effect of allowing to subsist the right of survivorship which has been ended by severance in status of the person changing his religion or losing his caste. The result of reading the Act with S.23, Special Marriage Act, is, therefore, this that a person marrying under the Act does not by reason of his marriage forfeit his existing interest in the joint family property or lose his rights of inheritance to the property of the members of the family, whether the right accrues before or after the marriage. As by operation of S.22 there results severance of status of a person marrying under the Act, the right of such person to take by survivorship is completely extinguished. That right does not continue and is not saved by S.23 or by Act No.21 of 1850. As by operation of S.22 there results severance of status of a person marrying under the Act, the right of such person to take by survivorship is completely extinguished. That right does not continue and is not saved by S.23 or by Act No.21 of 1850. It would be erroneous to regard the expression "any right of succession" in S.23, Special Marriage Act as enacting by implication that notwithstanding the severance in the status of a coparcener marrying under the Act, the right of survivorship possessed by him before the marriage, is not extinguished. The word "succession" in its generic meaning no doubt includes devolution of a person's property whether by survivorship, devise or inheritance. In its narrow and technical sense it is confined only to the modes of devolution by devise or inheritance. There is no such thing as succession in an undivided Hindu family. For, the right by survivorship arises on birth and not after the death of any of the coparceners. If a coparcener dies, the interest of other coparceners is enlarged by reason of their survivorship. But it would not be correct to say that the other coparceners have succeeded to the deceased coparcener. Here, there is no reason for thinking that the legislature used the word "succession" in S.23 in its wide meaning. To hold so would be to disregard the fundamental principle of Hindu coparcenary that with the severance of status, the right of survivorship ceases to exist, and to nullify the effect of S.22. The scope of S.23 and Act No.21 of 1850 is limited in its operation. They are intended for protecting a person marrying under the Act from losing any right of property or of succeeding as heir. They do not confer any new right on such a person in modification of the rights he possessed in Hindu coparcenary prior to his marriage. If it was the intention of the legislature that the right of survivorship of a person marrying under the Act should not be put to an end, it could have quite clearly expressed that intention by providing that the marriage shall not have the effect of causing severance in status of the marrying co- parcener. If it was the intention of the legislature that the right of survivorship of a person marrying under the Act should not be put to an end, it could have quite clearly expressed that intention by providing that the marriage shall not have the effect of causing severance in status of the marrying co- parcener. To hold that a coparcener marrying under the Act retains his right of survivorship in spite of severance in status by operation of S.22 is really to put the marrying coparcener in a position better than that he would have been if partition had been effected in the ordinary way. It seems to me impossible to reconcile the construction sought to be put on the expression "right of succession" by the learned counsel for the respondent with the intention of the legislature as expressed in the language of Ss.22 and 23 and with the fundamental rules of coparcenary and survivorship in Hindu Law. 13. This brings me to consider the question whether succession to the self-acquired properties of a deceased father is by inheritance or by survivorship. It is interesting to note that despite the clear texts of the Mitakshara on the point and the observations of the Privy Council in - 'Venkayyamma v. Venkataramanayyamma', 25 Mad 678 (C) that "where the sons succeed to the self-acquired property of the father, their inheritance is unobstructed and they take it by survivorship", there have been two conflicting lines of decisions on the point. One has taken the view, which commended itself to the learned District Judge in this case, namely, that in 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; and that the foundation, therefore, of a right to take such property by survivorship fails and that as the father has an absolute power of disposal over his self-acquired property, the sons succeed to the self-acquired property of their father by inheritance and not by survivorship. , (See - 'Viravan Chettiar v. Srinivaschariar', AIR 1921 Mad 168 (FB) (D); - 'Badri Nath v. Hardeo', AIR 1930 Oudh 77 (E); - 'Ganesh Prasad v. Hazarilal', AIR 1942 All 201 (FB) (F); - 'V.G. Kulkani v. V.S. Kulkarni', AIR 1948 Bom 313 (G). , (See - 'Viravan Chettiar v. Srinivaschariar', AIR 1921 Mad 168 (FB) (D); - 'Badri Nath v. Hardeo', AIR 1930 Oudh 77 (E); - 'Ganesh Prasad v. Hazarilal', AIR 1942 All 201 (FB) (F); - 'V.G. Kulkani v. V.S. Kulkarni', AIR 1948 Bom 313 (G). The other line of decisions takes the view that the sons acquire an interest in their father's self-acquired property by birth and that on the father's death if such property is left undisposed of, the sons who form a joint family with him take it by right of survivorship (See - 'Nana Tawker v. Ramachandra Tawker, 32 Mad 377 (H); - 'Fakirappa v. Yellappa', 22 Bom 101 (I); - 'Shamrao Bhaurao v. Krishnarao Bhaurao', AIR 1941 Nag 297 (J); - 'Raghubar Dayal v. Ramdulare', AIR 1928 Rang 206 (K); - 'Mt. Ramdei v. Mt. Gyarsi', AIR 1949 All 545 (FB) (L).) The conflict seems to have arisen on account of the observations of the Privy Council in two cases. In - 'Katama Natchiar v. S. Rajah Moottoo Vijaya Raganadha B.G. Taver', 9 Moo Ind App 539 (M), the Privy Council said: "According to the principles of Hindu Law, there is coparcenaryship between the different members of a united family, and survivorship following upon it. 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 may well take by survivorship that in which they had during the deceased's life time a common interest and a common possession. 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." 14. In - 'Sartaj Kuari v. Deoraj Kuari', 15 Ind App 51 (PC) (N) which was a case relating to impartible estate, the Privy Council made the observation that there can be no right by birth where there is no right to partition. On the basis of these observations the view had been taken that as a son cannot enforce a partition of his father's self-acquired property and as the father has an absolute power of disposal over it, it cannot be said that the son takes an interest in the property by birth. On the basis of these observations the view had been taken that as a son cannot enforce a partition of his father's self-acquired property and as the father has an absolute power of disposal over it, it cannot be said that the son takes an interest in the property by birth. I do not think it necessary to review the conflicting decisions referred to above, because after the very recent decision of the Supreme Court in - 'Arunachala Mudaliar v. Muruganatha Mudaliar', AIR 1953 SC 495 (O) there can be no room for controversy on the question under consideration. That was a case in which the Supreme Court considered the question of the kind of interest a son takes in the self-acquired property of his father which he receives by way of gift or testamentary bequest from him, vis-a-vis own male issue. In connection with that question the Supreme Court referred to the texts in Mitakshara in regard to the father's right of disposition over his self-acquired property and the interest which his sons or grandsons take in the same and also to para 272 of Mayne's Hindu Law (11th Edn.) page 336 and then observed: "It is undoubtedly true that according to Mitakshara the son has a right by birth both in his father's and grandfather's estate, but as has been pointed out before, a distinction is made in this respect by Mitakshara itself. In the ancestral or grandfather's property in the hands of the father, the son has equal rights with his father; while in the self-acquired property of the father, his rights are unequal by reason of the father having an independent power over or predominant interest in the same." 15. The observation of the Supreme Court in 'Arunachala's case (O)' leaves no doubt about the correctness of the proposition that the sons have a right of birth in the self-acquired property of the father. After stating this proposition, it has been pointed out in Mayne's Hindu Law that "the son's right by birth does not, therefore, extend to his enforcing a partition or interdicting an alienation of his father's property. After stating this proposition, it has been pointed out in Mayne's Hindu Law that "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 sons to succeed to the property by survivorship or as apratibandhadaya." Explaining how the misconception on the question of the son having a right by birth in his father's self-acquired property arose and how even when there is no right to partition there can be a right to survivorship, it has been observed in Mayne's Hindu Law in paras 272 and 273: "The misconception was evidently due to the view based on the observation in 'Sartaj Kuari's case (N)' relating to impartible 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 Sanskrit authorities; and the observation in 'Sartaj Kuari's case (N)' 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 Sir Dinshaw Mulla observes in - 'Shiba Prasad v. Prayag Kumari', AIR 1932 PC 216 (P), though the other rights which a coparcener acquires by birth in impartible property no longer exist, the birth right or the senior member to take by survivorship still remains. So, too in the case of ordinary partible property acquired by a father the son's right by birth exists even though the other rights of a coparcener 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 successionis but it can be renounced or surrendered so that, as has been held, a divided son loses his right by inheritance to it." "On principle the position taken up in the Mitakshara that the son has a right by birth in property acquired by the father is unassailable. The grandson's right by birth in the grandfather's property is only a logical result of the son's right by birth in the father's property. For, if the son has no right by birth in his father's property, his son born before the grandfather's death can have no right by birth in the grandfather's property. How then does he acquire by birth a right in the grandfather's property after it has descended to the father; if neither sons nor grandsons born before the grandfather's death have any right by birth in the acquirer's property, they cannot acquire by birth any equal right once the grandfather's property has descended .................. The error lies in overlooking the difference between the son's right by birth and the son's equal ownership with his father in the grandfather's property under special text. The Judicial Committee in 'Venkayamma v. Venkatramanayyamma (C)', pointed put that where the sons succeed to the self-acquired property of the father their inheritance is unobstructed and they take it by survivorship." 16. The question of the son acquiring an interest in the father's self-acquired property by birth seems to me to be concluded by the decision of the Supreme Court in AIR 1953 SC 495 (O), I must here observe that the contrary view stated in Mulla's Hindu Law (11th Edition) at pages 246, 248 and 249 must, therefore, be taken to be not sound. As the decision of the Supreme Court in 'Arunachala's case (O)' binds us to adopt the view that the son has a right by birth in the father's self-acquired property, it must follow as a necessary consequence that the property is unobstructed heritage devolving by survivorship. It also follows that if the self-acquired property has not been disposed of by the father during his life time and if the father was joint with some of his sons and grandsons and separated from the others, then on his death the undivided sons and grandsons would take the property to the exclusion of the separated sons or grandsons. It also follows that if the self-acquired property has not been disposed of by the father during his life time and if the father was joint with some of his sons and grandsons and separated from the others, then on his death the undivided sons and grandsons would take the property to the exclusion of the separated sons or grandsons. In this view of the matter Fatehchand who on his marriage in 1931 under the Special Marriage Act ceased to be a member of the joint family by operation of the statute cannot claim a share in separate property of Chhaganlal who at the time of his death was joint with Girdharilal, his sons, and Jageshwar Prasad, Fatehchand's son born of sacramental first marriage. It is not the case of the plaintiff Fatehchand that Chhaganlal made desposition of a share of the property in his favour during his life-time. The statement in letter Ex. P.23 written by Chhagantal to Fatechand on 21-9-1937 saying "You have full one-half share in my property even today and afterwards" is clearly not a disposition in favour of Fatehchand. In my judgment the plaintiff Fatehchand's claim for a share in the self-acquired property of Chhaganlal must, therefore, fail. 17. The further question then arises whether Jageshwar Prasad has any share in Chhaganlai's self-acquired property. Jageshwar Prasad is the son of Fatehchand born of his sacramental first marriage. He is a grandson of Chhaganlal. He, therefore, clearly acquired a right by birth in the grandfather Chhaganlai's self-acquired property. As the succession to this property is by survivorship and as Jageshwar Prasad was joint with Chhaganlal at the time of his death, it is obvious that on a partition of that property in the hands of Girdharilal Jageshwar Prasad is entitled to a 1/2 share in the property. Mr. Rege learned counsel for the appellants, however, submitted that with the severance of Fatehchand's status as a member of the undivided family, Jageshwar Prasad also ceased to be a member of the joint family. Mr. Rege learned counsel for the appellants, however, submitted that with the severance of Fatehchand's status as a member of the undivided family, Jageshwar Prasad also ceased to be a member of the joint family. Learned counsel said that inasmuch as under S.26, Special Marriage Act on the marriage of a person professing the Hindu religion, his father if he has no other son living, has the right to adopt another person as a son, the marrying person after severance of his status must be treated as if he were dead and non-existent and he cannot be regarded as a fresh stock of descent; and that, therefore, the severance of Fatehchand's status had the effect of extinguishing altogether his line and Jageshwar Prasad is not entitled to succeed to the property of Chhaganlal. I do not find myself able to accede to this contention. The use of the words "his severance" in S.22, Special Marriage Act clearly show that the marriage of any member of an undivided family operates as a severance of the joint status between him only and the other members of the family, but not as a severance of his own sons from the family or as a severance amongst members inter se, the marriage extinguishing the right of survivorship as between the marrying person only and his coparceners. Now under the Hindu Law there is no presumption that when any one coparcener separates himself from the joint family, this involves a separation of his own sons from the family or a separation of the other members inter se. In - 'Palani Ammal v. Muthuvenkatachala', AIR 1925 PC 49 (Q) Sir John Edge observed: "It is now beyond doubt that a member of a joint family can separate himself from the other members of the joint family and is, on separation entitled to have his share in the property of the joint family ascertained and partitioned off for him, and that the remaining coparceners, without any special agreement amongst themselves, may continue to be coparceners and to enjoy as members of a joint family what remained after such a partition or the family property. That the remaining members continued to be joint may, if disputed, be inferred from the way in which their family business was carried on after their previous coparcener has separated from them." 18. That the remaining members continued to be joint may, if disputed, be inferred from the way in which their family business was carried on after their previous coparcener has separated from them." 18. This statement of law was reiterated by the Privy Council in - 'Bal Krishna v. Ram Krishna', AIR 1931 PC 154 (R). As already stated there is overwhelming evidence in this case to indicate that after the second "marriage of Fatehchand, Jageshwar Prasad continued to be joint with his grandfather and uncle. The conclusion that the marriage under the Act of any member of an undivided family has not the effect of causing severance of his sons born of sacramental marriage is reinforced by the fact that there is no provision in the Special Marriage Act about the rights in regard to succession of such sons. Section 24 of the Act only provides for succession to the property of the marrying person and to the property of the issue of the marriage under the Act. I do not think that S.26 has the effect contended by the learned counsel for the appellants. Section 26 reads as follows : "When a person professing the Hindu, Buddhist, Sikh or Jaina religion marries under this Act, his father shall, if he has no other son living have the right to adopt another person as a son under the law to which he is subject." 19. It is to be observed that in this section the words "under the law to which he is subject" appear. These words make the right of adoption dealt with by S.26 subject to the personal law governing the father of the person marrying under the Act. If, therefore under the Hindu Law a person cannot adopt a son, if he has a grandson living, then the father of a person marrying under the Act if he has a grandson whether born of the marrying son or of any deceased son, living cannot adopt. In my view S.26 presupposes the nonexistence of any grandson or great-grandson in a Hindu family. It does not confer on the father of a person professing the Hindu religion and marrying under the Act any greater rights of adoption than he has under the Hindu Law. In my view S.26 presupposes the nonexistence of any grandson or great-grandson in a Hindu family. It does not confer on the father of a person professing the Hindu religion and marrying under the Act any greater rights of adoption than he has under the Hindu Law. If S.26 is read as conferring on the Hindu father, who has grandsons living and no other son living, a right of adoption on the supposition that on the marriage of the marrying member, his son also ceases to exist, then in order to make the right of adoption consonant with Hindu Law we must logically hold that all grandsons whether they be the sons of the marrying member or his deceased brothers cease to exist. It is impossible to accept such a construction which involves far reaching consequences utterly incongruous with sections 22, 23 and 24 of the Special Marriage Act and with the principles of Hindu Law. I am, therefore, disposed to think that Jageshwar Prasad's right to a share in his grandfather's property is in no way affected by the severance in status of Fatehchand. Learned counsel for the appellants urges that Fatehchand's suit being one for having his own share divided off and given to him, in that suit Jageshwar Prasad cannot be given a declaration that he has a share in the property and to have that share allotted to him by partition in the suit. I am not satisfied, why Jageshwar Prasad cannot be given in this suit, the relief he is entitled to. If this had been a case where Jageshwar Prasad had been made a defendant only to enable Fatehchand to obtain a complete decree for partition, then the contention advanced by the learned counsel would, I think, have been right. But Jageshwar Prasad joined in the suit as a plaintiff and claimed a share in the property of his grandfather in his own right. It cannot therefore, be maintained that as Fatehchand is found to have no share at all, there is no suit for partition and consequently Jageshwar Prasad's share cannot be determined and allotted to him by partition in this suit. On the other hand it seems to me most undesirable that Jageshwar Prasad should be driven to further litigation to obtain a relief which he is entitled to and which can be given to him in the present suit. 20. On the other hand it seems to me most undesirable that Jageshwar Prasad should be driven to further litigation to obtain a relief which he is entitled to and which can be given to him in the present suit. 20. As to the contention of the appellant that the house situate on Jail Road, Indore was purchased by Gangabai herself and was rebuilt by Gangabai and Girdharilal with their money, the evidence is all the other way and conclusively shows that the purchase was made by Chhaganlal benami in the name of his wife Gangabai and that it was rebuilt by Girdharilal and Gangabai out of the moneys left by Chhaganlal. The test for determining whether a sale transaction is a benami transaction is now well-settled. The general rule of law is that where a person with funds, supplied by himself, buys property in the name of another, there is a resulting trust in favour of the former, the beneficial interest being in him though the ostensible ownership is in the latter. In English Law there is an exception to the rule in that where the purchase is made ostensibly in the name of wife or child, there is a presumption of an intended advancement. No such exception has been admitted in Indian Law. Therefore, where a husband pays the money and purchases the property in the name of his wife, the burden of proving lies on the wife to show that the husband purchased the property in her name by way of gift or advancement. If the wife fails to prove this, the presumption would arise that the husband who in fact provided the money is the rightful owner. The main criterion is thus the source of the purchase money. It is, however, not conclusive of the benami character of the transaction. The prima facie inference arising as to the benami nature of the transaction from the fact of the source of the purchase money may be weakened and even negatived by the surrounding circumstances, the position of the parties and their relation to one another, the motives which could govern their actions and their subsequent conduct. The law on the subject is stated in the same terms in Mayne's Hindu Law (Edn. 11) in para 819 at pages 955 and 956. The law on the subject is stated in the same terms in Mayne's Hindu Law (Edn. 11) in para 819 at pages 955 and 956. In - 'Chanchala Devi v. Puri Bank Ltd.', AIR 1951 Orissa 22 (S) Jagannadhadas J., adverted to the test of the source of the purchase money as being a primary and crucial factor in making out the benami character of a purchase and said that "when considering the question as to the source of the purchase money, the matter has to be looked at not necessarily by requiring express or positive proof of the supply of specific funds of the husband or of the wife for the disputed purchase, but proof of the relevant facts with reference to the broad probabilities and the circumstances in the light of the evidence is enough." The evidence on the point of the character of the transaction has to be reviewed in the light of what has been stated above. In his written statement Girdharilal while admitting that the house was purchased in the name of his mother Gangabai, denied that the said purchase was benami or was for the benefit of Chhaganlal. He, however, did not state specifically that Gangabai supplied the funds for the purchase of the house. In his deposition he admitted that at the time of the purchase of the house Gangabai had no source of money. In Ex. P.3, which is a certified copy of an application made by Girdharilal on 21-4-1937 to the Municipal Commissioner, Indore, seeking permission to rebuild the house, Girdharilal said in so many words that the house had been purchased by his father in the name of his (i.e. Girdharilal) mother Gangabai. When asked to explain this statement Girdharilal had no compunction in saying that it was not a true statement. The learned District Judge has observed at one place that Girdharilal impressed him as a thoroughly unreliable person. On reading Girdharilal's evidence it seems to me that he is a man who will make any statement, whether true or untrue if he thinks that it is to his own advantage so to do. In dealing with the property Girdharilal did not recognize the ownership of his mother Gangabai. In Ex. P.3, as well as in Ex. On reading Girdharilal's evidence it seems to me that he is a man who will make any statement, whether true or untrue if he thinks that it is to his own advantage so to do. In dealing with the property Girdharilal did not recognize the ownership of his mother Gangabai. In Ex. P.3, as well as in Ex. P.2 which is a copy of an application, Girdharilal had presented to the Municipal Commissioner earlier on 18-1-1937 for permission to rebuild the house, and in Ex. P.15 which is a copy of the plaint in a suit for the ejectment of a tenant from a portion of the house. Girdharilal described himself as the owner of the house. The other evidence indicative of the fact that the house was purchased by Chhaganlal for his own benefit is that in Ex. P.16 which is an account kept by Chhaganlal and Girdharilal of the family income and expenditure, the rent received from some tenants in the house has been shown as a part of the family income. There was no reason to credit the amount of rent in the family income if the house really belonged to Gangabai. In Ex. P.23 the letter which Chhaganlal addressed to Fatehchand on 21-9-1931, Chhaganlal mentioned that he had no intention to exclude Fatehchand "from any property movable or immovable". The only immovable property in existence on the date of the letter was the house in question. This shows that the house standing in the name of Gangabai was Chhaganlal's own property. Fatehchand explained the motive of Chhaganlal in purchasing the house in Gangabai's name by saying that he advised Chhaganlal to purchase the property in Gangabai's name because sometime before the purchase, suits had been filed against Chhaganlal in Khandwa for the recovery or debts of a larger Hindu family of which Chhaganlal was a member and from which he had separated in 1919. Having regard to this evidence and to Girdharilal's admission that the house was purchased by his father in the name of Gangabai and that Gangabai had no source of money at the time pi the purchase, it is difficult to maintain that the conclusion of the learned District Judge that the purchase was made benami by Chhaganlal in the name of his wife and that Gangabai was not the beneficial owner of the house, is wrong. Coming to the question whether the house was rebuilt by Gangabai and Girdharilal with their own money, here too, the evidence is far from satisfactory. In para 16 of his written statement Girdharilal stated that the house was rebuilt at a cost of about Rs.30,000/- made up of the proceeds of the sale of Gangabai's ornaments and of sums advanced by him. It is in evidence that Girdharilal's income was negligible. Ex. P.16, the account which was kept by Chhaganlal and Girdharilal does not contain any entry relating to Girdharilal's earnings. It is, therefore, not clear how Girdharilal was in a position to advance a substantial sum of money to Gangabai for the rebuilding of the house. Indeed, Girdharilal himself admitted in his evidence that he did not advance any money to his mother for the rebuilding of the house. The allegation that the money was raised by Gangabai by selling her ornaments is also not substantiated. It was said that Chhaganlal used to hand over his income to Gangabai and she invested a part of the income in purchasing gold from time to time. If Chhaganlal did hand over his income to Gangabai and she made purchases of gold out of the income, even then in the absence of any evidence to show that Chhaganlal made a present of the income to Gangabai, it cannot be held that the gold or the proceeds thereof were the property of Gangabai. The gold would no more be the property of Gangabai than if Chhaganlal himself had purchased it and kept it with Gangabai. According to Girdharilal he opened an account in the Bank of Indore of the amounts obtained and expended in connection with the rebuilding of the house. But he was unable to point out in that account any entry indicating the credit of the proceeds of the sale of any ornaments or gold. The appellant sought to prove by the evidence of Motilal that on two occasions Girdharilal sold gold to Motilal. Exs. D.19 and D.20 which are copies of entries in Motilal's account books in regard to these transactions show that by the sale of gold the appellants obtained a total amount of Rs.2000/-. This amount is far short of Rs.30,000/-which Girdharilal said was spent on the rebuilding of the house. Exs. D.19 and D.20 which are copies of entries in Motilal's account books in regard to these transactions show that by the sale of gold the appellants obtained a total amount of Rs.2000/-. This amount is far short of Rs.30,000/-which Girdharilal said was spent on the rebuilding of the house. The evidence conclusive of the fact that the house was rebuilt out of the money left by Chhaganlal relates to the state of Bank accounts soon after the death of Chhaganlal and after the completion of the rebuilding of the house. The evidence is that Chhaganlal had de- posited in the Bank over Rs.40,000/- in the names of the members of his family; that in 1941 the deposits stood at Rs.44,000/- and in 1943 they fell to Rs.9,600/-. It is significant that the period from 1941 to 1943 was the period in which the house was re-built. On this evidence the story of Girdharilal that the house was rebuilt out of the moneys raised by Gangabai by the sale of her ornaments and out of the moneys advanced by him falls to the ground. Girdharilal's further claim that his income and Chhaganlal's income were blended together and that out of this joint family funds the house was rebuilt is equally without any basis. As I have already said Girdharilal did not earn anything. There was, therefore, nothing which he could blend with the income or separate property of his father Chhaganlal. The onus was on the appellant to prove that Chhaganlal's separate property and income became joint family property by blending. The appellant should have proved by evidence that Chhaganlal's separate property and income ceased to be so by his own will and intention to surrender his exclusive rights. There is no such evidence. It is plain that the house being the self-acquired property of Chhaganlal in which Gangabai has no right of any kind, she could not dispose of by will or gift the property, Girdharilal's sons cannot, therefore, claim any title to the house under the will and the gift deed (Ex. D.17 and Ex. D.18) executed by Gangabai. 21. It is plain that the house being the self-acquired property of Chhaganlal in which Gangabai has no right of any kind, she could not dispose of by will or gift the property, Girdharilal's sons cannot, therefore, claim any title to the house under the will and the gift deed (Ex. D.17 and Ex. D.18) executed by Gangabai. 21. On the question of limitation, the arguments put forward by the learned counsel for the appellant is that Fatehchand's right to claim a share in the property arose from the time of the severance of his status in 1931; that Jageshwar Prasad's right accrued on the death of Chhaganlal in 1939; and that, therefore, the plaintiff's suit filed on 17-6-1948 was barred by time under Art.120, Limitation Act. There is no force in this contention. It is obvious that Fatehchand and Jageshwar Prasad could assert their right in the property only on the death of Chhaganlal in 1939 and the right to sue for a declaration and division of share could arise only when the right was asserted and denied by the defendants, ever repudiated (sic) the right of the plaintiffs to a share in the property. The letters Exs. D.2, D.3 and D.4 written by Fatehchand to Girdharilal in 1939, 1940 and 1943 were referred to by the learned counsel for the appellants as showing that the defendants had even before the writing of these letters denied the plaintiffs' right. By these letters Fatehchand asked Girdharilal to give him complete information about the assets of Chhaganlal, making the suggestion that the matter of division of his share in the assets should be settled amicably, Girdharilal did not give any reply to these letters. In my opinion there is no justification for inferring from these letters or from Girdharilal's silence, the conclusion that Girdharilal had denied the plaintiff's right to a share in the property even six years before the filing of the suit. There was some controversy at the Bar as to the proper article of the Limitation Act applicable to the case. Mr. Chitale learned counsel for the respondents suggested that Art.127 was the proper article. In my view this article has no application. There was some controversy at the Bar as to the proper article of the Limitation Act applicable to the case. Mr. Chitale learned counsel for the respondents suggested that Art.127 was the proper article. In my view this article has no application. As pointed out by the Federal Court in - 'Ratneshwari Nandan v. Bhagwati Saran', AIR 1950 FC 142 (T) Art.127 pre-supposes the existence of a joint family and joint family property and can be invoked only when the suit is brought to enforce a right to a share therein by a person excluded from such property. The plaintiff's suit is clearly not a suit contemplated by Art.127. 22. Lastly it was said by the learned counsel for the appellants that the decree passed by the learned District Judge was not in accordance with the judgment. It was pointed out that whereas in the judgment the ornaments said to be in possession of the defendants were valued at Rs.12,000/-, in the decree the valuation put on them is Rs.22,000/. Further that" though there is no mention in the judgment of money lending transactions done by the defendants as liable to partition, yet the decree mentions an amount of Rs.5,000/- on account of these transactions as an asset to be divided. Learned counsel for the respondents while not disputing these descrepancies said that the methods adopted by the learned District Judge in working out the decree was not satisfactory. I agree with the learned counsel that the decree framed is not proper. What the learned District Judge did was this. He passed a decree in terms of the prayers made by the plaintiff without determining the extent of cash or the value and existence of ornaments belonging to Chhaganlal which came to the hands of the defendants, and the value of the other assets which were stated by the plaintiff to be liable to partition. The learned District Judge inserted in the decree the valuation alleged by the plaintiff. The question whether certain property in the defendants' possession about which partition is claimed is available for partition or not and its value, although raised at the trial did not properly arise at the stage of making the preliminary decree. That question should have been left for decision at the inquiry subsequent to the preliminary decree. The question whether certain property in the defendants' possession about which partition is claimed is available for partition or not and its value, although raised at the trial did not properly arise at the stage of making the preliminary decree. That question should have been left for decision at the inquiry subsequent to the preliminary decree. Be that as it may, the extent and value of Chhaganlal's Bank balances, ornaments and of the business done by the defendants with moneys belonging to Chhaganlal have not been properly determined. These questions will now be considered by the Commissioner to be appointed and decided by the learned District Judge in passing the final decree. 23. In the result I would allow this appeal in part and in place of the preliminary decree of the lower court, pass a decree declaring that the plaintiff Jageshwar Prasad is entitled to a half share in the house situate on Jail Road, Indore and in the Bank balances, ornaments belonging to Chhaganlal in the hands of the defendants and in the business done by the defendants with moneys belonging to Chhaganlal, and directing the lower court to appoint a Commissioner for determining the extent and value of Bank balances, ornaments and other assets of Chhaganlal and for the division of the property in two equal shares. The decree will also contain the following direction as to costs. 24. Having regard to the fact that the plaintiff Fatehchand has failed in his claim, I would direct him to pay to the defendants one set of costs here and in. the Court below. The plaintiff Jageshwar Prasad shall bear his own costs upto the preliminary decree. Costs subsequent to the preliminary decree shall be borne equally by Jageshwar Prasad and the defendant Girdharilal. CHATURVEDI, J.:- 25. I have had the advantage of going through the draft judgment dictated by my learned brother. I agree with my learned brother that the house situated on Jail Road, Indore, was purchased by Chhaganlal benami in the name of his wife Gangabai and was built by Girdharilal and Gangabai out of the moneys left by Chhaganlal. I also agree that respondent 1 Fatehchand did not separate from his father in 1918 but that his second marriage in 1931 had the effect of his severance from the undivided family under S.22, Special Marriage Act, 1872. I also agree that Chhaganlal's letter Ex. I also agree that respondent 1 Fatehchand did not separate from his father in 1918 but that his second marriage in 1931 had the effect of his severance from the undivided family under S.22, Special Marriage Act, 1872. I also agree that Chhaganlal's letter Ex. P.23 dated 21-9-1937 does not amount to a testamentary disposition in favour of Fatehchand. It only shows that Chhaganlal in 1937 wanted to give half of his property to his son Fatehchand; but it is not clear what transpired subsequently to change his mind. At least this much is clear that before his death, Chhaganlal did not give any property to Fatehchand, who was separated from the family in 1931 and who could not have got the property by survivorship. 26. I must, however, confess that there is no unanimity of the judicial opinion on the point that sons who are joined with their father at the time of his death inherit to the exclusion of those who are separate. There is no text of Mitakshara which directly distinguishes between the right of undivided and of a divided son. Chapter I, Sec.1, Placitum 3 says that "the wealth of the father as also of the paternal grand-father becomes the property of his sons or grand-sons in the right of their being his sons or grandsons respectively and this is an inheritance not liable to obstruction." Then in Chapter 1, Sec.6, Placitum 4 it is said "the same rule is propounded by Manu', a son born after a division shall alone take the parental wealth?" Then Placitum 6 says: "Whatever has been acquired by the father in the period subsequent to partition belonged entirely to the son born after separation." Then comes the provision for re-united sons in Placitum 7 which reads: "But the sons 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." 27. These placita have been considered by the High Court in India and the consensus of opinion is that the text of the Mitakshara is not exhaustive and that the principle and not the letter is to be followed; that when we have specific texts giving preference to an after-born son over sons before partition to the extent of making him the sole inheritor of his father's wealth and when placitum 7 enjoins that the afterborn son shall participate with such of the brethren as are re-united 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 of self-acquired property. 28. The leading case of course is 22 Bom 101 (I) where it has been held that as between united sons and a separated grandson the succession on the grandfather's death, to the property, both ancestral and self-acquired left by him goes to the united sons and not to the separated grandson. Ranade and Jardine JJ. gave separate and concurring judgments and although no original texts were cited, reliance was placed on certain extracts from West and Buhler's Hindu Law. This case has been recognised as an authority for the proposition that sons who were joined with their father at the time of his death inherit to the exclusion of those who were separate and as such has been followed in 32 Mad 377 (H); - 'Narasimha Rao v. Narasimham', AIR 1932 Mad 361 (U); AIR 1921 Mad 168 (FB) (D); AIR 1928 Rang 206 (K); AIR 1941 Nag 297 (J) and AIR 1942 All 201 (FB) (F). Almost all the important authors (except one) on Hindu Law have approved this opinion; Golapchandra Sirkar Sastri alone striking a discordant note: See pp. 586-587 of his Hindu Law (7th Edn.) where he states that in the case of reunited sons altered order of succession is expressly provided for in the texts and a son who is reunited cannot claim preference to another who remains separate. 29. This contrary opinion is based more or less on the view that the divided and undivided sons both are equally placed so far as religious duty and efficacy of oblation and sacrifice are concerned and so there is no reason why the divided son should be excluded from inheriting his father's self-acquired property. 29. This contrary opinion is based more or less on the view that the divided and undivided sons both are equally placed so far as religious duty and efficacy of oblation and sacrifice are concerned and so there is no reason why the divided son should be excluded from inheriting his father's self-acquired property. Then it has been pointed out that the Mitakshara gives to the son an unobstructed right by his birth to the separate property of his father and the partition cannot convert it into an obstructed right; and it has been held in - 'Marudayi v. Doraisami Karambian', 30 Mad 348 (V), that partition does not annul the filial relation nor the right of succession incidental to such relations. In AIR 1930 Oudh 77 (E), a Division Bench (Stuart C.J. and Bisheshwar Nath Srivastava J.) held that in the case of property acquired by a Hindu father after his separation from some of his sons, the sons who have separated from him will be entitled to share along with the sons who may be living jointly with him. A similar view was expressed by Richard C.J. and Banerji J. in - 'Kun-war Bahadur v. Madho Prasad', AIR 1919 All 223 (1) (W). 30. Lastly, I may usefully refer to AIR 1942 All 201 (FB) (F), where the pros and cons of the question , have been very ably and elaborately discussed and dealt with by a Full Bench which, however, could not come to any unanimous decision. The majority (Collister and Bajpai JJ.) held that, on the death of a Hindu leaving self-acquired property, the undivided sons succeed to such property to the exclusion of the divided sons under the Mitakshara. Hamilton J. dissented and observed that there is no coparcenary of father and sons in the self-acquired property of the father and that father is as regards his self-acquired property, from the beginning, just as separated from sons who are joint with him in ancestral property as from sons who are not and so the partition of ancestral property should have no bearing on the self-acquired property. Collister J., who did not agree with this view, however, remarked that the question "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. 31. Collister J., who did not agree with this view, however, remarked that the question "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. 31. Thus there is no unanimity of judicial opinion on the point; though, I admit, it is very difficult to ignore the strong current of decisions in favour of the view that undivided sons will succeed to the self-acquired property of the father in preference to divided sons. It is only on this basis that I agree with my learned brother in holding that Fatechand is not entitled to any share in the self-acquired property of his father. 32. The same considerations however will not apply to the case of Jageshwar Prasad plaintiff No.2 son of Fatechand born of his first marriage. He held, acquired by birth, an unobstructed right to the self-acquired property of his grandfather and his right to a share in his grand-father's property is in no way affected by the statutory presumption of severance in status of Fatechand in 1931. There is no evidence that Jageshwar Prasad ever separated from his grand-father and a normal state of every Hindu family is that it is jonit in food, worship and estate - 'Neelkisto Deb Burmono v. Beerchunder Thakoor', 12 Moo Ind App 523 at p.540 (PC) (X). The mere fact that his uncle continued to live with the grand-father in his house joint in food with him is not sufficient to deprive Jageshwar Prasad who was living away from the grand-father of his share in the estate. The grand-son's right in his grand-father's self-acquired property, in my opinion, cannot be defeated by any act of his uncle or grand-mother. As observed by Telang J., at p.56 of 16 Bom 29 (FB) - 'Apaji Narhar v. Ram Chandra Raoji', (Y). "Even when the property is the self-acquired property of the grand-father, the grandson by birth acquires a right to it even while it is yet in the grand-father's hands; such right is doubtless liable to be defeated by the exercise of the dominant right of the grand-father as the acquirer, but not being so defeated by any act of the grand-father, it attaches upon his property; in the same way as the right of the grand-father's sons themselves. It is not a right to receive a share of that which the father may receive on a partition; it is a right in and to the property itself, like that of the father, and co-equal with it." As there is nothing on record to indicate that the grand-father wanted to deprive his grand-son of his right, Jageshwar Prasad is clearly entitled to a share in the estate. I agree that his suit was within the period of limitation and therefore I concur in the order proposed by my learned brother. Order accordingly.