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1977 DIGILAW 16 (GUJ)

AHER HAMIR DUDA v. AHER DUDA ARJAN

1977-02-07

M.C.TRIVEDI, S.OBUL REDDY

body1977
S. OBUL REDDI, J. ( 1 ) THIS Letters Patent Appeal by leave arises out of the judgment of the learned Single Judge dismissing the appeal preferred by the plaintiff against the judgment and decree of the District Judge reversing the judgment and preliminary decree passed for partition by the Civil Judge (Junior Division) Kutiyana. The short question that arises for determination in this appeal is whether the appellant (plaintiff) is entitled to bring an action for partition without the assent of his father under the Mitakshara law applicable to this State when the coparcenary consists of a paternal uncle and others. ( 2 ) THE facts necessary for determination of the question involved are the following. The appellant his father and his uncle constitute a Hindu undivided joint family. The plaintiff filed the partition action averring that he is a member of the coparcenary and that he is entitled to a share in the coparcenary properties. According to him the properties are joint family properties and as such he is entitled to ask for partition of the properties by metes and bounds. ( 3 ) THE action was resisted by the respondents i. e. his father and uncle and another on the ground that the appellants father had separated from the rest of the family during his fathers time and the action as brought by the appellant is not maintainable. ( 4 ) THE main issue before the trial Court was whether the plaintiff was entitled to partition of the suit properties. There was also an issue whether the first defendant that is the father of the plaintiff was the exclusive owner of a Survey Number referred to in paragraph 7 of the written statement. ( 5 ) THE trial Court was of the view that there was no partition between the first defendant and his father and that the plaintiff was therefore entitled to 1/6th share in the joint family properties and on that basis it passed the preliminary decree. That preliminary decree was assailed in the Court of the District Judge by the plaintiffs father. The appellate Court held that the evidence on record did not justify an infer- ence that the first defendant had separated himself from his father about forty years prior to the suit as alleged by the plaintiff. That preliminary decree was assailed in the Court of the District Judge by the plaintiffs father. The appellate Court held that the evidence on record did not justify an infer- ence that the first defendant had separated himself from his father about forty years prior to the suit as alleged by the plaintiff. In that view following the decision of the Full Bench of the Bombay High Court in APAJI NARHAR KULKARNI V. RAMCHANDRA RAVJI KULKARNI 16 BOM. L. R. 29 allowed the appeal. The plaintiff preferred a Second Appeal against the said judgment and decree and the learned Single Judge agreed with the findings recorded by the first appellate Court and dismissed the appeal and consequently the suit. He however granted leave and that is how the Letters Patent Appeal is before us. ( 6 ) MR. Vyas learned counsel appearing for the appellant strenuously contended that the decision of the Bombay High Court in Apajis case is no longer good law in view of the decision of the Supreme Court in STATE BANK OF INDIA V. GHAMANDI RAM A. I. R. 1969 S. C. 1330 and therefore the plaintiff is entitled to a preliminary decree in his favour for partition of the properties by metes and bounds. The question raised in Apajis case was whether under the Hindu Law applicable to the Presidency of Bombay (the Satara District) a son can in the lifetime of his father sue his father and uncles for a partition of the ancestral family properties and for possession of his share therein the father not assenting thereto Justice Telang delivered a dissenting judgment whereas the other learned Judges Sir Charles Sargent Kt. Chief Justice Mr. Justice Bayley and Mr. Justice Candy held that under the Hindu Law applicable to the Presidency of Bombay which then comprised of this State also a son cannot in the lifetime of his father sue his father and uncles for a partition of the ancestral immovable family property and for possession of his share without the father assenting thereto. Mr. Justice Bayley and Mr. Justice Candy held that under the Hindu Law applicable to the Presidency of Bombay which then comprised of this State also a son cannot in the lifetime of his father sue his father and uncles for a partition of the ancestral immovable family property and for possession of his share without the father assenting thereto. Mr. Vyas invited our attention to certain passages in the judgment of Justice Telang to contend that the view of Justice Telang is the view taken by all other High Courts in India and therefore the view of the majority in Apajis case requires re-consideration In the then Bombay State which comprised the present State of Gujarat the law as laid down in Apajis case is that without the assent of his father a son is not entitled to a partition if the father is joint with his own father brothers or other coparceners though he may enforce a partition against the father if the father is separate from them. ( 7 ) THE Supreme Court in STATE BANK OF INDIA V. GHAMANDI RAM (SUPRA) was concerned with the case of a joint Hindu family having cash deposits in a Bank in Pakistan and the liability of the Bank in India in respect of the deposits. The learned Judges there were not concerned with the rights of a son to enforce partition against the father and other coparceners without the assent of the father. All that the Supreme Court said in that case is :- the incidents of co-parcenership under the Mitakshara law are: first the lineal male descendants of a person up to the third generation acquire on birth owner- ship in the ancestral properties of such person; secondly that such descendants can- at any time work out their rights by asking for partition; thirdly that the partition each member has got ownership extending over the entire property conjointly with the rest fourthly that as a result of such co-ownership the possession and enjoyment of the properties is common fifthly that no alienation of the property is possible unless it be for necessity without the concurrence of the coparceners and sixthly that the interest of a deceased member lapses on his death to the survivors. When the learned Judges laid down that the descendants can at any time work out their rights by asking for partition they were not considering the light of a son in a coparcenary to bring a partition action against the coparceners like uncles and grandfather in the State of Gujarat which formed part of the erstwhile State of Bombay. Therefore that decision does not either expressly or impliedly overrule Apajis case. There was no reference to Apajis case by the Supreme Court at all in that case. ( 8 ) THE case of SARTAJ KUARI V. DEORAJ KUARI 10 ALLAHABAD 272 also does not render any assistance to the case of the appellant here. There the Privy Council was considering the case with regard to an impartible estate and therefore it was held that in regard to impartible estate the sons right at birth did not exist where there was no right on his part to partition; also that inalienability depended on custom or on the nature of the tenure. In this case the evidence did not establish that by custom the estate was inalienable. In the course of discussion the Privy Council observed. 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. Again the emphasis in this decision also is as to the existence of a right. ( 9 ) THE right of the appellant a coparcener by birth to a share in the ancestral property is not in dispute. Every coparcener is entitled to a share on partition. His right to seek partition or to enforce partition is also not denied. What is put against him is only this That right which he has so far as the erstwhile Presidency of Bombay is concerned cannot be exercised or enforced without the consent of the father where the coparcenary consists of collaterals like uncles and others. He cannot ask for severance of status without the father giving assent thereto. Admittedly in this case the father of the appellant had not given his assent and in fact he has been throughout contesting the right of his son the appellant to enforce his right for partition. Mr. He cannot ask for severance of status without the father giving assent thereto. Admittedly in this case the father of the appellant had not given his assent and in fact he has been throughout contesting the right of his son the appellant to enforce his right for partition. Mr. Vyas invited our attention to the written statements to contend that both the father and uncle of the appellant had pleaded that the father of the appellant had separated from the rest of the family That case was not accepted by the first appellate or the second appellate Court. The specific case of the plaintiff throughout has been that he is a member of the undivided family and that he is entitled to ask for partition and separate possession of his share. Findings of fact have been recorded by the Dist- rict Court and by the learned Single Judge that there was no severance of status and that the coparcenary remained intact in other words the learned Single Judge and the first appellate Court rejected the defence of the respondents that the father of the appellant had separated himself from his father about forty years ago. That finding of fact recorded by the first appellate Court and by the learned Single Judge of this Court cannot be disturbed by us. ( 10 ) EVER since the case of DURGA CHOWDHRANI V. JAWAHIR SINGH 17 IND APP 122 (PC) it has been consistently held by the High Courts and the Supreme Court that there is no jurisdiction to entertain a Second Appeal on the ground of erroneous finding of fact however gross the error may seem to be. Therefore we have to proceed on the basis that the coparce- nary existed at the date when the plaintiff brought the action and that the plaintiffs father had never separated himself from his grandfather about forty years ago so as to make us hold that there was severance of status between the father of the appellant and other members of the coparcenary. ( 11 ) APAJIS case came to be considered by a Division Bench of this Court in JASWANTLAL V. NICHHABHAI (1964) 5 G. L. R. 161. That was a case where the plaintiff asked for partition of the joint family properties by metes and bounds on the ground that there was serverance of status. ( 11 ) APAJIS case came to be considered by a Division Bench of this Court in JASWANTLAL V. NICHHABHAI (1964) 5 G. L. R. 161. That was a case where the plaintiff asked for partition of the joint family properties by metes and bounds on the ground that there was serverance of status. The learned Judges therefore distinguished Apajis case and held that where there was severance of status it would be open to a son where the copar- cenary consists of his father uncles and others to ask for partition of the properties by metes and bounds without the father assenting thereto. The Supreme Court in Civil Appeal No. 403 of 1964 decided on August 23 1965 affirmed that decision. In so affirming the learned Judges observed- having therefore regard to the statement of the plaintiff in all the paragraphs of the plaint and interpreting the plaint as a whole we are satisfied that the High Court was right in holding that the suit was not a suit brought for severance of joint family status but was a suit merely for partition by metes and bounds. ( 12 ) NOW in the present case what the plaintiff is asking is not only for severance of status but also for partition of the properties by metes and bounds. In the above appeal the correctness of the decision of the Full Bench in Apajis case was not challenged. The Supreme Court however made it clear that they were not expressing any opinion with regard to the correctness of that decision or its applicability to this case. Therefore it is not necessary for the purpose of disposal of this Letters Patent Appeal that this Court should refer the matter to a larger bench to examine the correctness of the decision in Apajis case. The Supreme Court has affirmed the view of this Court in JASWANTLAL V. NICHHABHAI (supra) that where there is severance of status it would be open to a son to ask for partition of the joint family properties by metes and bounds. In this case as already pointed out by us a categorical finding of fact has been recorded that there was no severance of status as claimed by the father of the plaintiff. In fact it is the case of the plaintiff that there was no severance of status. In this case as already pointed out by us a categorical finding of fact has been recorded that there was no severance of status as claimed by the father of the plaintiff. In fact it is the case of the plaintiff that there was no severance of status. The case of the plaintiff must either stand or fail on his own He cannot now be permitted in this Court to approbate and reprobate by asking us to take into account what his father had said in his written statement. So far as that question whether his father had separated from his grandfather about forty years ago was concerned there is a categorical finding of fact and that puts an end to the controversy as to whether there was severance of status or not. ( 13 ) THE Letters Patent Appeal therefore fails and is accordingly dismissed. No costs. ( 14 ) MR. Vyas made an oral application for leave to appeal to the Supreme Court under Article 133 (1) of the Constitution. We are unable to certify that this is a fit case for leave to appeal to the Supreme Court since no substantial question of law of general importance which in our opinion requires to be decided by the Supreme Court arises in this case. Oral application rejected. Appeal dismissed: Leave to appeal refused. .