1. The suit out of which this second appeal arises was instituted by the plaintiffs for partition and separate possession of their share in the properties of the Joint Hindu family, consisting of the plaintiffs and the defendants. Plaintiffs 1 to 4 are the children of defendant 3. Plaintiff 5 is the mother of plaintiffs 1 to 4 and wife of defendant 3. Defendants 1 and 2 ere the brothers of defendant 3. The plaintiffs brought the above suit on the allegation that the parties to the suit constituted a join Hindu family and that the plaintiffs were entitled to claim partition of their shares in the property. Defendants 1 and 2, inter alia, pleaded that defendant 3 was not a member of their family as he had been given away in adoption to one Dhanu Mharrate and that the suit should even otherwise fail on the ground that the sons of defendant 3 could not file a suit for partition without the consent of defendant 3 when defendant 3 continued to remain joint with his brothers defendants 1 and 2. It is unnecessary to refer to the several other allegations made, in the written statement of defendants 1 and 2. The trial Court after recording the evidence and hearing the parties, dismissed the suit.
One of the grounds relied upon by the trial Court in support of its decision was that the suit was not maintainable in view of the decision of the High Court of Bombay in Apaji Narhar Kulkarni v. Ramachandra Ravi Kulkarni. (1892) ILR 16 Bom 29 (FB), in which it was held that under Mithakshara law a son could not in the lifetime of his father sue his father and uncles for a partition of the joint family properties and or possession of his share therein when the father was not assenting thereto. Against the decision of the trial Court, the plaintiffs appealed to the lower appellate Court. The lower appellate Court dismissed the appeal on the sole ground that it was not maintainable in view of the ruling in Apaji's case. (1892) ILR 16 Bom 29 (FB), referred to above. Aggrieved by the Judgment and decree of the lower appellate Court, the plaintiffs have filed this second appeal.
2. After hearing the counsel for the parties Bhimiah, J. before whom the above appeal came up for hearing earlier, referred the appeal to a Division Bench under Section 8 (2) of the Mysore High Court Act by his order dated 13-4-1972 since he considered the question of law involved in this case was of considerable importance.
3. Sri T. S. Ramachendra, the learned counsel for the appellants, at the outset submitted that the decision of the lower appellate Court which rested solely on the decision in Apaji's case. (1892) ILR 16 Bom 29 (FB). was erroneous. He contended that the said decision was based on an incorrect understanding of the relevant text of Mithakshara Law, and, therefore, the correctness of the said decision required to be re-examined. He brought to our notice the decisions of other High Courts, to which reference would be made at a later stage, in which a contrary view had been taken. It was further submitted that in view of the decision of the Supreme Court in Puttarangamma v. M. S. Ranganna. : 3SCR119 , the view expressed in Apaii's case. (1892) ILR 16 Bom 29 (FB). should be treated as having been impliedly overruled.
Sri A. V. Albal, the learned counsel for the respondents, however contended that the decision of the High Court of Bombay which had held the field for a very long time should not be brushed aside unless there were compelling reasons to do so. Since it is not disputed that apart from the High Court of Bombay, no other High Court has taken the view that a son is not entitled to ask for partition during the lifetime of his father, without his father's consent against his father and uncles and that in the four other integrating areas of the new State of Mysore the prevailing view of law is contrary to the view of the Bombay High Court, we have considered it necessary and desirable to re-examine the question afresh without being tied down by the rule of stare decisis.
4. On an examination of the textual law and the several decisions bearing on the question, the Supreme Court held in Puttarangamma's case, : 3SCR119 that the correct legal position was that in the case of a member of a joint Hindu family subject of Mithakshara law, severance in status was effected by an unequivocal declaration on the part of one of coparceners of his intention to hold his share of the joint family properties separately and that the consent of other coparceners was not necessary to bring about the division in status. We have, therefore, to examine in this case whether the above rule is in any way modified in the case of a son seeking partition from his father and father's brothers or father's nephews without the consent of the father.
5. We shall first take up for consideration the decision in Appaji's case, (1892) ILR 16 Bom 29 (FB), and the other decisions of the High Court of Bombay in which the view relied upon by the respondents has been accepted. The Full Bench which decided Appiji's case. (1892) ILR 16 Bom 29 (FB) consisted of Sargent, C. J., and Bayley, Telang and Candy, JJ., Sargent, C. J. and Candy, J. wrote separate opinions though concurring and Bayley. J. merely expressed his concurrence with the opinion of Sargent. C. J.. Telang. J. wrote a separate dissenting opinion. The case was decided in accordance with the opinion of the majority. The opinion of Sargent. C J., has been based on placitum, (1884) JLR 6 All 560 (PC) of Chap. I. Section 5 of Mithakshara (sic). He observed that, while it was well settled in all the Presidencies that under the Mithakshara Lew, a son can claim partition of the ancestral properties inherited by his father whether he assented to it or not, such a right was not available during the lifetime of his father in the case at ancestral property held in coparcenary when the father was joint with his father or brothers or nephews without the consent of the father.
In support of the above view, he referred to a decision of the Privy Council in the course of his opinion in Raj Bishenchand v. Mt. Asmaida Koer. (1884) ILR 6 All 560 (PC) in which their Lordships of the Privy Council observed.
'according to Mithakshara. Chap. I, Section 5, verse 3, there can be no partition directly between grand-father and grand-son while the father was alive.'
According to Sargent, C. J. the above statement of the law was however not necessary for the decision of Rai Bhisheni chand's case. (1884) ILR 6 All 560 (PC), and although the opinion of Privy Council was entitled to greatest respect, it could not be regarded as more than the expression of the Privy Council as to the proper meaning of the verse. He, however relied upon the meaning of the text of Mithakshara law referred to above found in the Privy Council case in support of his opinion. He noticed that the translation of the said text made by Colebrooke had not been approved by some other Sanskrit scholars such as Dr. Jolly who delivered lectures in Tagore Law Lecture Series entitled 'Outlines of History of the Hindu law of Partition. Inheritaccordance and Adoption'.
He also observed that Telang, J. who was one of the members of the Full Bench and who was well-versed in Sanskrit also did not approve of the correctness of the translation by Colebrooke, but still having regard to the context in which the said text appeared in the Mithakshara and the 'grave practical difficulties' which would ensue if the son could assert his right, to partition from his father and uncles against the will of his father, he was of the opinion that the law did not recognise such a right in the son. He further observed that a careful reading of the text which recognised the equal right of ownership of father and son in the property acquired from the grand-father, did not necessarily imply a separate and independent right by one of the co-owners to have the property segregated from the joint family estate in the hands of several lines of coparceners. Candy, J. who agreed with the opinion of Sargent. C. J. while construing the text of the Mithakshara, relied upon the following extracts from Maine's Ancient Law and Maine's Early Law and Custom, in support of his decision:--
'The mature Roman Law, and modern jurisprudence, following in its wake, look upon co-ownership as an exceptional and momentary condition of the rights of property. This view is clearly indicated in the maxim which obtains universally in Western Europe, nemo in communion potest invites definer (no one can be kept in co-proprietorship against his will). But in India this order of ideas is reversed, and it may be said that separate proprietorship is always on its way to become common' (Extract from Maine's Ancient Law). 'I have frequently observed, 'the unintended disintegration of the Indian joint families by the operation of Anglo Indian Law'. (Extract from Maine's Early law and Custom).
He felt that the family was a cherished institution of the Hindus and that to turn the family into a voluntary partnership would not be to develop but to subvert it. He felt that he would not be justified in unsettling the law by overruling the current of authorities by which for so many years the law appeared to have been settled and in accordance with which it appeared to have been generally understood and acted upon. He proceeded to observe that it was the duty of the Court administering Hindu law not so much to enquire whether a disputed declaration was fairly deducible from the earliest authorities as to ascertain whether it had been received by particular school which governed a District with which they were concerned.
According to him that the said case was the first case in the presidency of Bombay in which the right of every member of a joint Hindu family including the junior members to a partition of the family property, not solely against the father, but against the other collaterals had been asserted and that he felt that it was strange that such a claim had never before been raised, if the unrestricted power to claim partition belonged to every member of a Hindu joint family. The foregoing would show that both Sargent, C. J., and Candy, J. appeared to have had no hesitation to depart if necessary from the true meaning of the text of Mithakshara in order to avoid 'grave practical difficulties' and expressing any opinion which would be contrary to what had been stated in Maine's treatises.
Candy, J. who was attracted by the statement in Maine's Ancient Law that in India separate proprietorship 'is always on its way to become common' overlooked what he had said in another part of the same book that the movement of society 'from status on contract' was a sign of progressive societies. Probably it was thought that Indians were not progressive. We are of the opinion that the opinions of these two learned Judges were to a large extent influenced by considerations which were not relevant for the purpose of construing the text of Mithakshara.
If the views of other Indian Courts regarding joint Hindu family law prevailing at the time when the above decision was rendered, had been taken into account, probably the learned Judges would have hesitated to come to the conclusion at which they arrived and what we have in our mind when we say so, is the principle of Hindu law which had been recognised by the Indian Courts even by the time the above decision was given, which recognised the right of a creditor of a junior member of a coparcenery to attach and bring to sale the undivided interest in the joint family property of such a member in order to realise the debt due from him. If such a creditor by filing a suit for recovery of money against a junior member, could bring about disruption in the status, there was little reason to think that the junior member could not bring about the same result by exercising his right to enforce a partition. Be that as it may, we are of the opinion that this case has to be decided only on the basis of Mithakshara text unless it is established that the same is overridden by a custom recognised by Courts.
6. Telang, J. who wrote the dissenting opinion in the above Full Bench case of the High Court of Bombay, has given cogent and convincing reasons for not accepting the view expressed by the majority. Before proceeding further, we find it desirable to set out the relevant text of Mithakshara of Chap. I, Section 5, verse 3:--
^^v?kquk foHkRds fir;kolekuHkz`krwds ok iSrL; nwOes foHkkxh ukfjRo vk/kz;xk..ksfirfj fir`uh HkkxdYius fFkRdRokarw A HkDrq ok LokftZrorw firwfj|k ;SosU;k 'kkar vkg&HkwcZ; firkegfiZRrk%fucw /kh nzO;eso ok A r= L;Rlnz'ka lokE; fizrw% iw=L; pSjfg AA121AA**
(The above text is extracted from S. S.Setlur's Mithakshara. page 645).
7. Colebrooke's translation of the above text reads as follows:--
'If the father be alive, and separate from the grandfather, or if he have no brothers, a partition of the grandfather's 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; to obviate this doubt the author says:--'For the ownership of father and son is the same in land, which was acquired by the grandfather, or in a corrode or in chattels (which belonged to him).'
Dr. Jolly has rendered it as follows:--
'Supposing the father to be divided (from his coparceners) or to have no brothers, shall the estate, which has been inherited from the grandfather, not be divided at all with the grandson in that case, because it has been directed that shares shall be allotted in right of the father if he is deceased (and not otherwise): or admitting partition to take place (in that case), shall it be instituted by the choice of the father alone? in order to remove the two doubts, which might thus be entertained, the author says', (vide Outlines of History of the Hindu Law of Partition, Inheritance and Adoration. Tagore Law Lectures 1883, by Dr, Jolly, page 125).
The translation of the last portion of the extract above is not given by Dr. Jolly. Depending upon the translation of Colebrooke, the learned authors West & Buhler observed in their book on Hindu law which had been published by the time Appaji's case. (1892) ILR 16 Bom 29 (FB) was decided, at page 68, 'that the right of the grandson to partition of ancestral property in the hands of the grandfather is denied as long as the father is alive on the ground that the father obstructs the right'. Dr. Jolly, however, was of the opinion that Colebrooke's translation was indeed 'couched in singularly obscure and unsatisfactory terms'. In order to understand the above text correctly, it may be necessary to examine the passages which appear before and after that. The first placitum in Section 5 lays down that amount grandsons of different fathers, division is to be made per stirpes. In the second placitum an illustration is given to explain what a division per stirpes means.
According to Dr. Jolly, with whom Justice Telang agreed, at the commencement of placitum (1884) ILR 6 All 560 (PC) with which we are concerned, a doubt is expressed by an imaginary enquiry which arises out of placitum : 3SCR119 . The doubt raised in the first being, whether 'shares shall be allotted in the right of the father if he be deceased', and the second doubt raised is whether no partition in any case during the lifetime of the father could take place 'or whether' a partition could take place only with his consent as in the case of father's self acquired property'. To these two doubts. Vijnaneswara proceeds to give the answer by setting out the text of Yainavalkya after placitum (1884) ILR 6 All 560 (PC) which reads, 'for the ownership of father and the son is the same in the land, which was acquired by the grandfather or in a corrode or in chattels (which belonged to him)'. The foregoing is the' correct interpretation of Mithakshara text according to Dr. Jolly and Justice Telang.
According to Justice Telang, a reading of the passage in Mithakshara which follows the above text would clearly show that the author of Mithakshara did not at any time intend to impose a restriction on what was considered to be an unqualified and well-known right of a coparcener to demand a partition which was recognised by placitum ILR 46 Bom 435 = (AIR 1922 Bom 292) which reads :
^^;fRirkegsu izfrxzgfot;fnzuk yC/kafr= firw% iwoL;p Lokj; yksdizfl|hefr Rok foHkkeks MfLr%**
'In such property which' was acquired by seizure of conquest by the paternal grand-father, the ownership of father and son is universally known, and, therefore, partition does take place,'
8. The above view of Justice Telang expressed in the opinion in Apaji's case, (1892 ILR 16 Bom 29 (FB) is in accord with the views of other High Courts in India, Before referring to the decisions of other High Courts, we would like to refer to two more decisions of the High Court of Bombay in which the opinion expressed in Apaii's case (1892) ILR 16 Bom 29 (FB) is followed.
9. In Jivabhai Vadilal v. Vadilal Sakarchand (1905) 7 Bom LR 232, Tyabji, J. while dealing with a case to which Mayukha applied, observed as follows:--
'during the argument in Court, three points were mainly discussed be* fore me, viz: first, whether the case of Apaji v. Ramachandra, (1892) 16 Bom 29 (FB). to be regarded as an absolutely conclusive authority as regards the Mitakshara law on this point; Secondly, whether as a matter of fact there is any real and substantial conflict between the Mitakshara and the Mayukha on the point I have to decide; and thirdly, whether if there is any such conflict, the Mayukha ought to prevail over the Mitakshara.
As regards the first point. It is no doubt quite true that the authority of the case of Appeal v . Ramachandra, (1892) ILR 16 Bom 29 (FB) is in the first place somewhat weakened by the dissent of Mr. Justice Telang, and that the Allahabad Full Bench, in the case of Jogul Kishore v. Shib Sahai (1883) ILR 5 All 430 (FB) had taken a different view. It is also true that the other High Courts, that is the Madras and Calcutta High Courts, have expressly dissented from the decision of the Bombay High Court, in the cases of Subba Ayyar v. Ganesa Ayyar, (1894) ILR 18 Mad 179 and Rameshwar v. Lachmi Prosad. (1903) ILR 31 Cal 111 (120). But although if 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 Full Bench in Bombay, still it seems to me that sitting alone, as I am here, I must consider myself as concluded by the Bombay Full Bench decision.'
In ILR 46 Bom 435 = (AIR 1922 Bom 292). the opinion of the Full Bench in Apaii's case. ILR 16 Bom 29 (FB) was again followed.
10. Now turning to the decisions of other High Courts, we shall first refer to the decision of the Madras High Court in (1894) ILR 18 Mad 179. In the said decision, their Lordships referred to the decision of the High Court of Bombay in Apaji's case, (1892) ILR 16 Bom 29 (FB) and observed as follows:--
'It was held by Sir Cotley Scotland, C, J., and Bittleston. J., that a grandson may in Hindu law maintain a suit against his grand-father for compulsory division of ancestral family property. The same view of the law under the Mitakshara was also taken by the Full Bench of the High Court of Allahabad in ( (1883) ILR 5 All 430 (FB) ) and Viramitrodaya, Chapter II, Part 1, verse 23, is also cited In support of the decision. A similar view was also expressed in Laljeet Singh v. Rajcoomar Singh, ( (1874) 12 Beng LR 373). We should have considered ourselves concluded by authority had it not been for the decision of the majority of the High Court at Bombay in ((1892) ILR 16 Bom 29 (FB)). After carefully reading the judgments in that case and comparing them with the Mitekshara and the decision in Nagalinga Mudali v. Subbiramaniya Mudali, ((1862-63) 1 Mad HCR 77), we agree in the opinion of Mr. Justice Telang who has reviewed at Length all the authorities on the subject and dissented from the conclusion arrived at by the majority of the court.'
In that case It was held that the Son's right to demand partition from the father arose from the coparcenary right of the former by birth and it was confined to ancestral property because the son and the father conferred equal spiritual benefit upon the grandfather and ancestors and they had equal right in such property, whilst in paternal property the father had a dominant right as its acquirer. It was further held that the suit for partition filed in circumstances similar to the case before us by the plaintiffs against their father and their uncles, was maintainable. In the said decision, the relevant texts of Mitakshara were also considered in detail.
In (1903) ILR 31 Cal 111, the view expressed by the Bombay High Court in Apaji's Case (1892) ILR 16 Bom 29 (FB), was dissented from and it was held that a Hindu governed by Mitakshara law was competent to maintain a suit for partition of ancestral properties even when his father and grandfather were both alive. Same is the view expressed in (1883) ILR 5 All 430 (FB). In that case the Allahabad High Court held that in a Joint Hindu Family governed by Mitakehara law, a grand-son had vested right in the joint family properties in the lifetime of his father and grandfather and that such interest was saleable in execution of a decree,
11. We shall now proceed to consider whether by the decision of the Supreme Court in Puttarangamma's case. : 3SCR119 , the view of the Bombay High Court in Apaii's case. (1892) ILR 16 Bom 29 (FB) is impliedly overruled or not. In that case the Supreme Court has observed as follows:--
'It is now a settled doctrine of Hindu Law that a member of a joint family can bring about his separation In status by a definite, unequivocal and unilateral declaration of his intention to separate himself from the family and enjoy his share in severally. It is not necessary that there should be an agreement between all the coparceners for the disruption of the joint status. It is immaterial in such a case whether the other coparceners give their assent to the separation or not The jural basis of this doctrine has been expounded by the early writers of Hindu law. The relevant portion of the Commentary of Vijnaneswara states as follows:--
And thus though the mother is having her menstrual courses (has not lost the capacity to bear children) and the father has attachment and does not desire a partition, yet by the will (or desire) of the son a partition of the grandfather's wealth does take place. Saraswathi Vilasa, Placitum 28 states:
From this it is known that without any speech (or explanation) even by means of a determination (or resolution) only, partition is effected, just as an appointed daughter is consisted by mere intention without speech. Viramitrodaya of Mitra Misra (Ch, II, Pl. 23) is to the following effect :
Here too there is no distinction between a partition during the lifetime of the father or after his death and partition at the desire of the sons may take place or even by the desire (or at the will) of a single (coparcener). Vyavahara Mayukha of Nilakantabhatta also states
Even in the absence of any common(joint family) property, severance doesindeed result by the mere declaration'I am separate from thee' because severance is a particular state (or condition)of the mind and the declaration is merely a manifestation of this mental state(or condition).' (Underlining by us)
A reading of the above passage from the decision of the Supreme Court would show that the right of a member of coparcenery to demand a partition at his own will and without the concurrence of the other coparceners including the father is well recognised. It should, therefore, be held that the view of the High Court of Bombay in Apaji's case. (1892) ILR 16 Bom 29 (FB) stands impliedly overruled. At this stage we may refer to a decision of the Privy Council in Shiba Prasad Singh v. Prayag Kumar Devi , in which Sir Dinshah Mulla speaking for the Judicial Committee observed as follows:--
'In the case of ordinary joint family property, the members of the family have: ((18921 ILR 16 Bom 29 (FB,) the right of partition: : 3SCR119 the right to restrain alienation by the head of the family except for necessity; ((1884) ILR 6 All 560 (PC)) the right of maintenance; and (1905) 7 Bom LR 232 the right of survivorship.'
It is, therefore clear that the right of partition is considered as a necessary incident of the co-ownership of property by members of a Hindu joint family. The above decision of the Privy Council must also be considered as having superseded the opinion expressed in Apaji's case; (1892) ILR 16 Bom 29 (FB).
12. We would have come to the same opinion even without the aid of the decision of the Supreme Court in Puttarangamma's case, : 3SCR119 , and the decision of the Privy Council in Shiba Prasad Singh's case. , on the basis of the text of Mitakshara which has come up for consideration before us. We however make it clear that while understanding the said text, we have relied upon the opinion of distinguished and erudite Sanskrit scholars who were at the same time eminent jurists such as Telang, J. and Dr. Jolly, in preference to the opinion of the three learned English Judges who were members of the Full Bench of the Bombay High Court.
13. In conclusion, we ere of the opinion that the majority opinion in Apaji's case, (1892) ILR 16 Bom 29 (FB) does not lay down the law correctly and we hold that the suit in the instant case is maintainable. This, however, does not dispose of the controversy between the parties in this case. The lower appellate court has not given its findings on other issues which had been raised in the suit We therefore, set aside the judgment and decree passed by the lower appellate Court and remand the case to it to record its findings on the other issues and to dispose of the case in accordance with law.
14. There will be no order as to costs.