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Vasudeo Ganesh Kulkarni Vs. Vishwanath Shripad Kulkarni - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtMumbai
Decided On
Case NumberFirst Appeal No. 310 of 1942
Judge
Reported inAIR1948Bom313
AppellantVasudeo Ganesh Kulkarni
RespondentVishwanath Shripad Kulkarni
DispositionAppeal dismissed
Excerpt:
.....when joint with other sons.;under hindu law a separated son is not entitled to any share in the self-acquired property left by his father at a time when the latter was joint with his other sons.;fakirapppa v. yellappa (1896) i.l.r. 22 bom. 101 and ganesh prasad v. hazari lal [1942] all. 759, f.b, followed.;badri nath v. hardeo (1929) i.l.r. 5 luck.649,dissented from.;katama natchier v. the rajah of shivagunga (1863) 9 m.i.a. 543 and vairavan chettiar v. srinivasachariar (1921) i.l.r. 44 mad. mad. 499, f.b., - - the maln ground of the dismissal was that the plaintiff had failed to produce any evidence to explain how it was that in 1924 he relinquished his rights to the property in suit; and on the day fixed for the hearing of the preliminary issues the plaintiff came to court,..........ground was that, even on the assumption that some of the property claimed in the suit was the self-acquired property of his father, nevertheless the plaintiff would not be entitled to any share in that property, since the circumstances of the relinquishment amounted to a separation of the plaintiff from the rest of the family, and on the authorities a separated son does not stand on the same footing as sons who are joint with their father with reference to their father's self-acquired property. both these reasons for the decision are contested in this appeal. 2. it is beyond dispute that in the year 1924 the plaintiff executed in favour of one of his elder brothers (vinayak) a deed of settlement, as a result of which he took an allowance in substitution of his right to share in the.....
Judgment:

Macklin, J.

1. The plaintiff's suit for partition has been dismissed, and he comes to this Court in appeal. The Maln ground of the dismissal was that the plaintiff had failed to produce any evidence to explain how it was that in 1924 he relinquished his rights to the property in suit; and a further ground was that, even on the assumption that some of the property claimed in the suit was the self-acquired property of his father, nevertheless the plaintiff would not be entitled to any share in that property, since the circumstances of the relinquishment amounted to a separation of the plaintiff from the rest of the family, and on the authorities a separated son does not stand on the same footing as sons who are joint with their father with reference to their father's self-acquired property. Both these reasons for the decision are contested in this appeal.

2. It is beyond dispute that in the year 1924 the plaintiff executed in favour of one of his elder brothers (Vinayak) a deed of settlement, as a result of which he took an allowance in substitution of his right to share in the joint family property. That brother died in 1933; and in 1937 (13 years after the deed of settlement) the plaintiff brought a suit to enforce the deed on the allegation that the allowance was not being paid. This suit resulted in a consent decree in 1938 by which a further adjustment was made. The plaintiff's father Ganesh died in 1940, and the present suit was brought in 1941. Issues were framed covering all the questions in dispute, in particular the question as to the plaintiff being bound by the deed of settlement or by the consent decree in his former suit, and the question of the self-acquisition of some of the property in suit. But certain issues (including the issues as to the plaintiff being bound by the deed of settlement or the consent decree) were treated as preliminary issues; and on the day fixed for the hearing of the preliminary issues the plaintiff came to Court, announced that his senior pleader had failed him, though he had all the important documents in his charge, and asked for an adjournment of the case. The adjournment was refused. Two days later the plaintiff repeated his request and asked that the order rejecting the adjournment be set aside, and that application also was rejected. In the absence of any evidence by the plaintiff to show why he was not bound by his deed of settlement and the compromise, the Court decided in favour of the defendants.

3. On behalf of the plaintiff Mr. Desai argues that the learned Judge rejected the plaintiff's application for an adjournment largely because he had that day engaged another pleader to take the place of the pleader who had absented himself, and ignored the plaintiff's allegation in his application that the absent pleader was in possession of important papers. But we do not think that this is a fair description of the situation. We have only to glance at the plaintiff's application to sec how vague it is.' It is not supported by any affidavit. It does not say that the plaintiff has been taken by surprise by any sudden defection of his pleader. It does not state what papers were in possession of the pleader, or how he got them, since presumably they were produced with the plaint as documents on which the plaintiff relied; and, in short, he does not give any particulars which would justify the Court in granting his application for an adjournment. There is not even any explanation of his failure to get back these important papers from his pleader, assuming that the pleader ever had them. We cannot criticise the learned Judge for his refusal to grant an adjournment and for his consequent finding in favour of the defendants that the plaintiff could get no share in the joint family property.

4. But the considerations relating to the so-called self-acquired property of the plaintiff's father are somewhat different. In so far as the relinquishment can be said to relinquish any right to a share in that property, the relinquishment must be held to be inoperative, since in effect it amounts to a transfer of a mere spes successionis. But apart from the relinquishment, the question is whether the plaintiff as a separated son (and it must be conceded that the plaintiff is a separated son) ranks equally with his brothers for a share in the self-acquired property left by their father at a time when they were in union with him. There is some conflict of authority on the point, the Chief Court of Lucknow having held that a separated son succeeds to his father's self-acquired property equally with his unseparated brothers : sec Badri Nath v. Hardeo I.L.R.(1929) Luck. 649 which is the same case. There is also the dissenting judgment of Mr. Justice Hamilton in Ganesh Prasad v. Hazari Lai [1942] All. 759. But there is no other authority, so far as we know, to support the plaintiff's contention, and the texts in the Mal-appear to be against him. Both Sir Dinsha Mulla and Mayne in their books on Hindu Law are against the view put forward by the plaintiff. So is the High Court of Madras, and also the only case of this Court to which we have been referred, namely Fakirappa v. Yellappa I.L.R.(1896) 22 Bom. 101. There can be no doubt that a father's self-acquired property goes by succession rather than by survivorship. That is made fairly clear by the Privy Council in Katama Natchiar v. The Rajah of Shivagunga (1863) 9 M.I.A. 543 This Court relied upon that authority for holding that there was a teal distinction for this purpose between a separated son and those sons who were joint with their father at the time of his death. The Privy Council, according to the head note of the case, stated that where one of the members of a united Hindu family owning ancestral property acquires separate estate, then on his death that separate estate does not fall into the common stock but descends to the male issue, if any, of the acquirer in the first instance. Mr. Justice Ranade in Fakirappa v. Yellappa cited this case with reference to an argument raised before the bench that the self-acquired property went by succession to all the sons irrespective of whether they were separated or joint, and said 'it is clear from the context that the male issue here spoken of does not refer to separated sons so much as to those sons who are in union with their deceased father.' The learned Judge goes on to say that 'the succession of the male issue is by right of survivorship to joint estate,' and words are used which might perhaps be interpreted as implying on the part of the learned Judge a statement that the succession of the sons was a form of survivorship. However that may be, it is clear that the property goes by succession. In this connection I may also refer to the decision of a Full Bench of the High Court of Madras in Vairavan Chettiar v. Srinivasachariar I.L.R(1921) . Mad. 499 F.B.

5. Mr. Desai then argues that this being a matter of succession the ordinary rule of succession must apply, and the ordinary rule of succession makes no distinction between divided sons and undivided sons. There is some attraction in the simplicity of this argument; but that there is much to be said against it from the point of view of the texts is clear from the citations in the authorities on the other side. I may particularly refer to the majority views of the learned Judges of Allahabad in Ganesh Prasad v. Hazari Lal. Their Lordships there cited with approval the decision of this Court 'in Fakirappa v. Yellappa, and in effect the decision of the majority is a complete upholding of the correctness of that decision, which it is also in line with the decisions of the High Court of Madras and, so far as we are aware, is not contrary to any reported decisions except Badri Nath v. Hardeo and the minority judgment in Ganesh Prasad v. Hazari Lal. We are naturally reluctant to disturb it, since it has stood for 50 years and is moreover supported by practical considerations, quite apart from the texts and the authorities. At the close of the judgment Mr. Justice Jardine (after his Lordship had agreed that in law the separated son could not take a share and without in any way suggesting that he had been influenced in his view of the law by any practical considerations) pointed out that there was no reported instance of any such claim having been made or awarded, which was surely a significant indication on the way in which Hindu Law on the point had been understood. The learned Judge also says that grievous inconvenience would result in many cases from allowing the separated son to share equally with his unseparated brothers, and that they were entitled to take that inconvenience into account, since it would stimulate unpleasant litigation and would interfere with the power of the father and the sons remaining in union with him to provide for a separating son by giving him, when he demands partition, something more than his proper share of the ancestral property. He also pointed out that the only way to prevent a separated son from claiming equally with his brothers in the self-acquired property of their father would be for the father to make a will or gift, so that partitions would be 'complicated with arrangements of a testamentary sort and premature'. In the result His Lordship came to the conclusion that the claim was contrary to the spirit and presumptions of the Hindu Law. With that conclusion we agree, and dismiss this appeal with costs.


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