M. R. MODY, J. ( 1 ) THIS is an appeal filed by the appellant-plaintiff from a judgment and order of the Joint Civil Judge ( Senior Division ) Surat dismissing a suit being Civil Suit No. 5 of 1957 filed by him in the Court of the Civil Judge ( Senior Division ) at Surat. ( 2 ) TO appreciate the points arising for determination in this appeal it is necessary to state a few facts. The suit related to the properties of the family of one Vallabhbhai Khandubhai. Vallabhbhai Khandubhai had three sons and several grand-children and great-grand-children. At one time this family was a joint and undivided Hindu family. This family acquired diverse movable and immovable properties and ventured upon several businesses in several commodities. The plaintiff is one of the great-grand-children of Vallabhbhai Khandubhai. On January 22 1957 the plaintiff filed the above mentioned suit against his grand-father his father his uncles his grand-uncles cousins and others. At present we will merely describe this suit as a suit for a partition of the properties belonging to this family because the nature of this suit is in dispute between the parties the dispute being that on the one hand it is contended by the plaintiff that this is a suit for partition of the family properties by metes and bounds only whereas on the other hand it is contended by the contesting defendants that this is a suit both for severance of status and a partition by metes and bounds of the movable and immovable properties belonging to this family. ( 3 ) AFTER the filing of the suit a number of written statements were filed. One of the contentions raised in the written statements was that it being an undisputed position that the parties are governed by the Mayukha sub-school of Mitakshara school of Hindu Law and this being a suit for partition and the plaintiff having not obtained the consent of his father for filing this suit this suit was liable to be dismissed in limine as it was not maintainable. On December 4 1958 defendant No. 1 made an application to the Court referring to this defence raised in the written statement and he submitted that a preliminary issue should be raised as set out in the application. On December 4 1958 defendant No. 1 made an application to the Court referring to this defence raised in the written statement and he submitted that a preliminary issue should be raised as set out in the application. The issue suggested by defendant No. 1 was Whether the plaintiff has a right to sue for general partition against his grand-father and others in the lifetime of his father ? The learned advocate for the plaintiff made an endorsement on this application to the effect that he had no objection to the raising of a preliminary issue but that the form in which it was raised was not proper. He suggested that the words in the lifetime of his father should be deleted from the issue. On this application the learned judge made an order on the same day raising the following preliminary issue:whether the plaintiff has a right to sue for general partition against his grandfather and others on what is alleged in the plaint? ( 4 ) ON July 28 1959 the plaintiff made an application for an amendment to the plaint. He stated in this application that through oversight on account of some printing error in paragraph 3 lines 2-3 of the plaint the wordsthat is and are had been incorporated. He submitted that the suit was for partition of the properties of the family which family was already separated Accordingly he prayed that these words should be deleted from paragraph 3 lines 2-3 of the plaint. This application was opposed by defendants 1 4 24 25 and 26 who submitted that the application was not bona fide and that the amendment would change the nature of the suit. Some of the other defendants followed suit in opposing this application. On August 22 1959 this application for amendment came on for hearing. At the hearing of this application the parties came to an understanding that this application should be heard along with the preliminary issue. The learned advocates appearing for the parties accordingly put in an application to this effect and the same was recorded by the learned trial Judge. In effect this application was directed to be heard with the hearing of the preliminary issue. The learned advocates appearing for the parties accordingly put in an application to this effect and the same was recorded by the learned trial Judge. In effect this application was directed to be heard with the hearing of the preliminary issue. This application and preliminary issue came on for hearing before the learned Judge in December 1960 and after hearing the parties the learned Judge disallowed the application for amendment and passed an order dismissing the suit. Being aggrieved by this judgment and order the plaintiff has preferred this appeal to this Court. ( 5 ) THAT takes us to the main point on which the suit was dismissed. This suit was dismissed following the judgment in Apajis case. Apajis Narhar Kulkarni and Another v. Ramchandra Ravji Kulkarni (1892) 16 Bom. 29. A Full Bench of the Bombay High Court consisting of Sir Charles Sargent C. J. and Justices Bayley Telang and Candy (Telang J. dissenting) there held that under Hindu Law applicable to the Satara District ( in the then Presidency of Bombay ) a son could not in the lifetime of his father sue his father and uncles for a partition of the immovable family property and for possession of his share therein the father not assenting thereto. It is common ground before us that there was no assent of the father of the plaintiff on record given before the institution of this suit. Mr. Patels contention was that following Apajis case this suit was rightly dismissed. The learned Judge interpreted the plaint in this suit as a suit not for partition of the immovable properties by metes and bounds simpliciter but as a suit for severance of the joint family. He held that it was a suit for general partition of the joint family property and accordingly Apajis case directly applied. He accordingly held that there being no assent given by the father the plaintiff in the absence of such assent was not entitled to sue his father and the others during the life-time of his father when his father was joint with his own father and brothers. In the view that he took of the matter of the interpretation of the plaint he left himself bound by the judgment in Apajis case and accordingly dismissed the suit. In the view that he took of the matter of the interpretation of the plaint he left himself bound by the judgment in Apajis case and accordingly dismissed the suit. In our view the suit not being a suit for general partition that is a suit for the severance of the joint family status and for possession the ratio decidendi in Apajis case could not and does not apply and the suit is maintainable. ( 6 ) BUT then Mr. Patel contended that assuming that the present suit is a suit for partition by metes and bounds simpliciter and is not a suit for severance of the joint family status even in that case the son could not sue for a partition by metes and bounds of the properties of the joint family when his father himself is joined with his own father and uncles. He submitted that if a son could not maintain the suit for severance and possession against the father and the grandfather without the assent of the father then the logical corollary to that proposition was that the son could not ask for partition by metes and bounds. He conceded that there was no direct authority on the point but for this proposition he strongly relied on Apajis case and certain observations in a judgment of the Privy Council reported in Rai Bishen Chand v. Mussamat Asmaida Koer L. R. 11 Indian Appeal 164 to which we shall presently turn. ( 7 ) THERE is no doubt that the Pull Bench decision of the Bombay High Court in Apajis case is binding on us. The question that arises for determination is that in deciding Apajis ease did the learned Judges also decide the question regarding the maintainability of the suit for partition by metes and bounds by a son without the assent of his father? In Apajis case the suit was by a son against his father and uncles defendants Nos. 1 and 3 being uncles and defendant No. 2 being the father of the plaintiff. The plaintiff alleged that he and the defendants were members of an undivided Hindu family and he claimed partition of the family property and possession of his snare. He alleged that his father (defendant No. 2 ) was a man of weak intellect and that his uncles ( defendants Nos. The plaintiff alleged that he and the defendants were members of an undivided Hindu family and he claimed partition of the family property and possession of his snare. He alleged that his father (defendant No. 2 ) was a man of weak intellect and that his uncles ( defendants Nos. 1 and 3 ) ill-treated the plaintiff and had turned him out of the family house. The uncles ( defendants Nos. 1 and 3 ) filed a written statement contending that the plaintiffs father had relinquished his rights in the ancestral properties in their favour by a release in the year 1863 and that therefore the plaintiff had no claim to a share. The learned subordinate Judge passed a decree for the plaintiff which was confirmed by the District Court. The matter came up in appeal before a Division Bench of the Bombay High Court and the Court referred the following question for determination to a Pull Bench:under Hindu Law applicable to this Presidency (the Satara District in this case) can a son in the lifetime of his father sue his father and uncles for a partition of the immoveable ancestral family property and for possession of his share therein the father not assenting thereto ?the matter came up before the Pull Bench consisting of the above mentioned Judges. Sargent C. J. and Bayley and Candy JJ. answered this question in the negative. In the course of the judgment the learned Judges relied on certain original Sanskrit texts and in their view on a correct interpretation of these texts a son had no general right of partition without the assent of his father. Telang J. delivered a dissenting judgment from the majority view and also considering the various texts in the Mitakshara and other texts. It may be mentioned in passing that the lone dissenting voice of Telang J. in Apajis case found an echo in the judgments of various other High Courts in this country but as far as the High Court of Bombay was concerned the view taken by the majority of the Full Bench in Apajis case held the field and was followed in subsequent cases. The law therefore laid down by the majority in Apajis case is the law which is binding on us. We will therefore proceed to find out what is precisely laid down by Sargent C. J. and Bayley and Candy JJ. The law therefore laid down by the majority in Apajis case is the law which is binding on us. We will therefore proceed to find out what is precisely laid down by Sargent C. J. and Bayley and Candy JJ. in Apajis case. ( 8 ) IN the first place it is pertinent to note that the suit in Apajis case was on an allegation that the defendants and the plaintiff were members of an undivided Hindu family and the claim was for the partition of the family and the possession of his share. In other words what was claimed in the suit was mainly a severance of the joint family status and incidentally the plaintiff claimed possession of his share. This is also brought out in the question referred to the Full Bench. The question related to a suit for partition of immovable ancestral family property and for possession of his share. Bearing in mind that the suit was on the allegation that the family was an undivided Hindu family it is clear that the whole question proceeded on the fooling of there being a joint and undivided Hindu family of which severance was sought. It is in this background that the question was considered by the majority in Apajis case and this is further brought out by a number of passages in these three judgments. At page 33 observed Sargent C. J. The question now raised by the present reference is whether such right of the son to partition also exists where the ancestral property is held in co-parcenery by the father in union with his brothers and nephews. At page 35 he said It is said indeed that the right of the son to partition in the case where the father is not divided from his co-parceners follows from the text of Yajnavalkya that the ownership of the father and son in property acquired from the grandfather is the same and that the case of property descended in one branch is not to be regarded as an exceptional case. At page 36 he stated that for the reasons given by him he was of the view that the proper construction to be placed on the relevant placita in the texts was that no necessary inference can be drawn in favour of the general right of the son to partition and the circumstance that neither the feeling nor practice of the Hindu community has interpreted the doctrine of the Mitakshara in the large sense afforded a strong reason why it should not be held that the sons independent right of partition extended beyond what was laid down in the texts. On the other hand Candy J referred to the sons right as an indefinite right in the joint property. After considering the various texts he observed It is evident then that the general rule enunciated in verses 5 and 8 relates back to the foundation of the rule given in verse 3; and thus it appears that the right of a son to compel his father to divide ancestral estate is confined to the case of an undivided family consisting of a father and his sons. It presupposes the grandfather to be dead (for the partition is of effects inherited from him ) and the father to have no brother with whom he is in union. At page 70 Candy J. emphasises the unascertained nature of the share in the entire property. At page 75 he says that the vested interest which every member of the joint family acquires by birth is in the whole property and adds that the quality of ownership which is the principal foundation of the right of a sonto demand partition is that of a father and son. At page 76 he stresses the aspect of the father being unseparated from his own collaterals. All these passages leave not the slightest doubt in our minds that what the learned Judges in Apajis case were considering was a case of general partition the case of the severance of a joint family the case on the footing of the existence of the joint and undivided Hindu family and not a case for the partition by metes and bounds. When the question which is referred to the Full Bench refers to the partition and for possession of his share what is contemplated is not possession of the share on a suit for partition by metes and bounds. When the question which is referred to the Full Bench refers to the partition and for possession of his share what is contemplated is not possession of the share on a suit for partition by metes and bounds. It is the incidental relief to the relief sought for partition by severance of the joint and undivided Hindu family. It appears to us to be clear that this case does not extend to the case of a partition by metes and bounds and does not lay down that any assent would be necessary for such a suit. ( 9 ) A single Judge of the Bombay High Court followed the decision in Apajis case but it appears to us with some reluctance. That was in the case of Jivabhai Vadilal v. Vadilal Sakarchand (1905) 7 B. L. R. 232 where Badruddin Tyabji J. held that under the Mayukha a son could not in the life-time of his father sue his father and uncle for partition of the ancestral family property and for the possession of his share therein the father not assenting thereto. There the allegation was that the joint family continued right till the date of the suit. In the course of the judgment Tyabji J. observed that the ruling of Apaji v. Ramchandra was weakened by the dissent of Telang J. and that it was further weakened by a different view taken by the High Courts of Allahabad Madras and Calcutta and then he stated But although it is unfortunate that all the other High Courts have taken a different view from that taken by the Bombay High Court and although it is a remarkable fact that every Hindu Judge has also taken a different view from that taken by the majority of the Pull Bench in Bombay still it seems to me that sitting alone as I am here I must consider myself as concluded by the Bombay Pull Bench decision. With respect even sitting as a Division Bench of this Court we share the feeling then experienced by Tyabji J. ( 10 ) IT was then argued that if we did not read Apajis case as covering the suit of partition by metes and bounds the logical corollary from Apajis case would be that there was no reason why the principle laid down therein as affecting suits for severance should not be applied to suits for partition by metes and bounds. For this submission Mr. Patel strongly relied on an observation in a judgment of the Privy Council reported in Rai Bishen Chand v. Mussamat Asmaida Koer Law Reports 11 Indian Appeals 164 The observation which Mr. Patel relied on was It cannot be strictly a partition for according to the Mitakshara ( cap. i sect. 5 verse 3 ) there can be no partition directly between grandfather and grandson while the father is alive. In Mr. Patels submission this observation clearly laid down that a suit for partition between a grandson and a grandfather would not be maintainable during the lifetime of the father and extending the principle in Apajis case he submitted that it could be only maintained with the assent of the father Now in the first place we do not read this observation in the light in which Mr. Patel wants us to read it. This observation is merely an observation purporting to set out the text contained in the Mitakshara cap. i. sect. 5 verse 3. It does not at all lay down that a suit for petition by a son would not lie against the grand-father and the collaterals of the father during the life-time of the father without the assent of the father. It deals with another aspect of the matter altogether. Their Lordships in that case were dealing with a particular document executed by the grand-father in favour of the grand-son and were considering the nature of that document. In considering the nature of that document they observed that that document could not be said to be a document of partition in view of the abovementioned text contained in Mitakshara. This is far from laying down any principle that there cannot be any suit for partition by a grand-son against his grand-father and his fathers collaterals during the fathers life-time without the assent of the father. This is far from laying down any principle that there cannot be any suit for partition by a grand-son against his grand-father and his fathers collaterals during the fathers life-time without the assent of the father. Surely the Privy Council could not have been laying down what is submitted by Mr. Patel having regard to a later pronouncement of the Privy Council in Sartaj Kuari and Another v. Deoraj Kuari I. L. R. (1888) 10 Allahabad 272 at 287 where they say that The property in the paternal or ancestral estate acquired by birth under the Mitakshara law is in their Lordships opinion so connected with the right to a partition that it does not exist where there is no right to it. If Mr. Patels interpretation of the observation in Rai Bishens ease were correct the question of any right of partition by a son would not arise at all. ( 11 ) THEN again in Anandrao Ganpatrao v. Vasantrao Madhavrao (1907) 9 B. L. R. 595 the Privy Council observed that a son took a right in the joint family estate independent of a father. ( 12 ) ASSUMING however that this observation does lay down what Mr. Patel contends for even then we have to examine the nature and the binding affect of this observation. As we have pointed out in Rai Bishen Chands case their Lordships of the Privy Council were dealing with a suit filed by a creditor of the father alleging that a gift-deed made by the grand father in favour of the grand-son was invalid and it did not affect the rights of the father in the property. Mainly they were concerned with the interpretation of the gift-deed and they dealt with various grounds of attack by the creditors against this deed of gift made in favour of the grand-son. Ultimately they came to consider the nature of this deed of gift and they said that they considered that it was not necessary to view the transaction as though it was to be determined by the rules of English Construction. Ultimately they came to consider the nature of this deed of gift and they said that they considered that it was not necessary to view the transaction as though it was to be determined by the rules of English Construction. They further said that the High Court had viewed this transaction in the light of the partition and it was in this reference that they said that it could not strictly be a partition for according to the Mitakshara texts there could be no partition directly between grand-father and grand-son while the father was alive. Now undoubtedly this is an observation of the Privy Council but in our view made in passing. In Apajis ease Sargent C. J. viewed this observation in the following words :the above statement of the law was however not necessary for the decision of the case. and although of course entitled to the greatest respect cannot be regarded as more than the expression of opinion of the Privy Council as to the proper meaning of the verse. This is important since if the view taken by the Privy Council were binding on this Court it would be conclusive against the right of the son as claimed in the present casein other words Sargent C. J; treated this observation as a passing observation. ( 13 ) NOW in Mohandas Issardas v. A. N. Sattanathan 56 B. L. R. 1156 the distinction between the different pronouncement and expressions of the opinion of Courts has been brought out. It is stated An obiter dictum is an expression of opinion on a point which is not necessary for the decision of a case. This very definition draws a clear distinction between a point which is necessary for the determination of a case and a point which is not necessary for the determination of the case. But in both cases points must arise for the determination of the tribunal. Two questions may arise before a Court for its determination. The Court may determine both although only one of them may be necessary for the ultimate decision of the case. The question which was necessary for the determination of the case would be the ratio decidendi the opinion of the tribunal on the question which was not necessary to decide the case would be only an obiter dictum. . . . . . . . . . . . . . The question which was necessary for the determination of the case would be the ratio decidendi the opinion of the tribunal on the question which was not necessary to decide the case would be only an obiter dictum. . . . . . . . . . . . . . . . . . . . . . . . . it would be incorrect to say that every opinion of the Supreme Court would be binding upon the High Courts in India. The only opinion which would be binding would be an opinion expressed on a question that arose for the determination of the Supreme Court and even though ultimately it might be found that the particular question was not necessary for the decision of the case even so if an opinion was expressed by the Supreme Court on that question then the opinion would be binding upon us. In our opinion the aforesaid observations in the Privy Council case do not either amount to the ratio decidendi in the case or even obiter dicta. They are merely passing observations made by the Privy Council after having dealt with the main question arising for determination before them. ( 14 ) ASSUMING for the sake of argument however that these observations amounted to obiter dicta of the Privy Council then ordinarily we should have thought ourselves bound by these obiter dictum. As pointed out by Chagla C. J. in Mohandass case The very reason why the Courts in India agreed to be bound by the obiter dicta of the Privy Council was that the highest judicial authority in the Empire had applied its mind to a question of law which arose before it for its determination and however unnecessary it was for it to decide that question having expressed an opinion on that point it became an authoritative pronouncement on that question of law and the Privy Council by deciding that question of law set its seal of approval upon that question of law. It cannot be suggested that the doctrine of obiter dicta was so for extended as to make the Courts bound by any and every expression of opinion either of the Privy Council or of the Supreme Court whether the question did or did not arise for the determination of the higher judicial authority. It cannot be suggested that the doctrine of obiter dicta was so for extended as to make the Courts bound by any and every expression of opinion either of the Privy Council or of the Supreme Court whether the question did or did not arise for the determination of the higher judicial authority. This clearly indicates that ordinarily obiter dicta of the Privy Council would be followed by the Courts in India. But in a later Full Bench case the Bombay High Court held that what is binding is not merely the point actually decided but an opinion expressed by the Privy Council which opinion is expressed after careful consideration of all the arguments and which is deliberately and advisedly given. The opinion given in Rai Bishen Chands case can hardly be said to be an opinion given after careful consideration of all the arguments or an opinion which is deliberately and advisedly given. In the first instance when-we turn to the arguments reported in the Indian Appeal Series as also the arguments reported of the same case in I. L. R. (1884) 6 Allahabad 560 ave do not find any argument regarding the maintainability of a suit by a son against his grand-father and his fathers collaterals during the life-time of the father without his assent being reflected therein. As a matter of fact we do not even find a reference to the placitum nor do we find any reference to any partition directly between grand-father and grand-son while the father is alive. We also fail to find any reference to the verse 3 sec. 5 Chapter I of the Mitakshara on the basis of which this observation is made. That being so it can hardly be said that this expression of opinion has been made after a careful consideration of all the arguments advanced because we do not find any argument having been advanced at all on this question before their Lordships of the Privy Council. Then again our attention was drawn that the purport of this placitum contained in verse 3 is not correctly set out and translation of this verse 3 contained in Setlurs translation of the Hindu Law Books was brought to our notice. Then again our attention was drawn that the purport of this placitum contained in verse 3 is not correctly set out and translation of this verse 3 contained in Setlurs translation of the Hindu Law Books was brought to our notice. Satlur translated this verse as follows:if the father be alive and separate from the grandfather or if he have no brothers a partition of the grandfathers estate with the grandson would not take place since it has been directed that shares shall be allotted in right of the father if he be deceased or admitting partition to take place it would be made according to the pleasure of the father like a distribution of his own acquisitions. This clearly brings out that even the purport of the text as set out by their Lordships cannot be said to be correct also next appears to us that what their Lordships were doing was only setting out the purport of the text and using it as an argument in interpreting the document before them. It cannot be said that this opinion was deliberately or advisedly given. Even if it amounted to an obiter dictum it was an opinion which was expressed by the Privy Council without careful consideration. It cannot be said that this was an opinion expressed after careful consideration of all the arguments and which opinion was deliberately and advisedly given. In these circumstances even if we were to hold that these observations amounted to obiter dictum it cannot be said that in the present case this obiter dictum of their Lordships of the Judicial Committee of the Privy Council should be binding on us. ( 15 ) MR. Patel did refer us to a number of other cases dealing with the effect of the obiter dicta of the Supreme Court and with the greatest respect we agree with what is laid down in these cases. These cases however do not help us in regard to the observations of Privy Council in Bishen Chands case. The case which helps us is the case reported in The State of Bombay v. Chhaganlal Gangaram Lavar 56 B. L. R. 1084 which has clearly indicated the extent to which and the circumstances in which the obiter dicta of the Judicial Committee of the Privy Council and the Supreme Court should be followed. The case which helps us is the case reported in The State of Bombay v. Chhaganlal Gangaram Lavar 56 B. L. R. 1084 which has clearly indicated the extent to which and the circumstances in which the obiter dicta of the Judicial Committee of the Privy Council and the Supreme Court should be followed. It is thus unnecessary for us to go into those other cases cited by Mr. Patel. ( 16 ) THEN Mr. Patel tried to reinforce this very argument in regard to the extension of the principle in Apajis case in a different way. He stated that apart from authority the suits which were according to him loosely characterised as suits for partition were suits for division of property. His argument turned this way: A severance was merely an expression of intention to sever and that being so the principle in Apajis case should be extended because whether it is a suit for severance or whether it is a suit for partition by metes and bounds the question relates to the division of ancestral property. In the first place having regard to the consensus of opinion between the Courts other than the Bombay High Court on what is laid down in Apajis case we do not think that the principle laid down in Apajis case should be extended to a suit for partition by metes and bounds simpliciter. For a long time since Apajis case all the other High Courts have taken a different view on the subject. There is a strong and a learned judgment of dissent delivered by Telang J. in Apajis case itself. In these circumstances we do not think that we should accede to Mr. Patels argument that the principle in Apajis case should be extended. Second the real reason why an assent was thought necessary in a suit for severance of status was that the son should not be allowed to disturb the whole family status. When the father is joint with his own father and his collaterals it is thought that it would be undesirable to allow the son to disturb the whole family by effecting a severance thereof without the assent of his father. When the father is joint with his own father and his collaterals it is thought that it would be undesirable to allow the son to disturb the whole family by effecting a severance thereof without the assent of his father. This is also reflected in the judgment of Sargent C. J. at page 36 where he says indeed it is plain that if the son could assert such right against the will of his father the segregation might lead to grave practical difficulties. It was the father himself who obstructed the channel. If the father assents to a severance that obstruction is removed. On the other hand if the father or anybody else has already severed the joint family status then in that event also the obstruction would be removed. Once a family is severed and thus there has already been disruption a suit for partition by metes and bounds simpliciter is only a mode of carrying out this severance. The severance is carried out by distribution of the properties by metes and bounds and by assuring to each one of the members entitled to a share his share en the joint family properties. That appears to us to be the reason why assent was thought necessary in the case of a suit for partition by severance in joint family status in Apajis case. That reasoning does not apply to a suit for partition by metes and bounds simpliciter. We do not think therefore that the submission that an assent should be necessary in a case for a suit for partition of joint family property by metes and bounds simpliciter is tenable. .