1. This appeal is directed against the Judgment and decree of the Court of the Principal Civil Judge, Chikodi in R.A. No. 111 of 1974 reversing the Judgment and Decree of the Court of the Munsiff, Chikodi, in O.S. No. 217 of 1972.
2. The appellants herein were defendants in the trial Court in a suit by the respondent plaintiff for a permanent injunction restraining them from interfering with his possession of the share of their brother Khandu in the suit lands R.S. No. 212/1 and 211/1 of Hanchinal Village in Chikodi Taluka.
3. The brief facts are that Baslinga porosities left behind three sons, namely, Mallu, Khandu and Ramu and died about 15 years before the institution of the suit. His son Mallu died in 1968 leaving behind his wife Paru - 4th defendant, Raghunath - the 1st defendant and Siddu - the 2nd defendant. 3rd defendant is the wife of Siddu. Khandu died unmarried. Deceased Baslinga had 1/3rd share in the suit lands aforesaid and was enjoying the same separately being in actual possession of the same. That for about 15 years prior to the institution of the suit the plaintiff alleged that they were in separate enjoyment of their different strips in these lands. Sketch was appended to the plaint showing three separate strips without giving their measurements and marking the share of Khandu with red pencil shade. He also alleged that three sons of Baslinga divided 1/3rd share left behind by their father into three strips and enjoyed them separately, though this private division was not recorded in village records. Mallu their brother died in the year 1968 as already stated and after his death Khandu their second brother sold his 1/9th share in R.S. No. 212/1 to the plaintiff for Rs.500/- on 25-9-70 and handed over actual possession to him. This transfer was mutated in the village Records and adding his 1/9th share to the 1/9th share of the plaintiff. Thus, the plaintiff has 2/9th share in this land. The plaintiff-respondent came in possession of Khandu's share. Khandu died on 3-11-1971 and he became entitled to his estate and therefore his share in R.S. No. 211/1 and a house possessed by him devolved on him. He pleaded that he was in actual possession of divided shares, the defendants were obstructing in actual possession of the same and therefore they may be restrained by permanent injunction. Later, the suit was amended for an alternate relief that in the event of the Court finding that no such strips were effected he prayed for a permanent injunction restraining the defendants from enjoying 2/3rd share in the entire 1/3rd family share.
4. The first defendant in contesting the suit contended in his written statement that there was no such division as alleged by the plaintiff. But all the brothers had 1/3rd share in the 1/3rd share taken by their father. The deceased Khandu was staying with the father of the defendant-1 i.e. Mallu and the defendants and his share in the suit land was being cultivated only by the defendants. Defendants ate in joint possession of 2/3rd share in each of the suit lands. He had no legal necessity to sell his property purchased by the plaintiff and even if there is a sale, the same is fraudulent, without consideration and without legal necessity. The plaintiff is also aware that Khandu was loving the defendants who intended to give his share to them. Thus, they denied the plaintiff was in possession of Khandu's share at any time and there is no question of obstructing the possession of the plaintiff of the share of Khandu.
5. The trial Court found that the plaintiff was not in lawful possession of the suit portion shown by red colour in the suit sketch and dismissed his suit. It found that even though the plaintiff is entitled to 2/9th share in the suit land, there is no proof of separation by effecting strips but he is entitled to be in joint possession of the same.
6. The first Appellate Court reversing this decree of the trial Court found that the plaintiff is entitled to a decree of injunction as far as the share of Khandu in S. No. 212/1 is concerned and accordingly gave an injunction to the plaintiff in that behalf. But dismissed the appeal with regard to S. No. 211/1.
7. In this second appeal, it is urged by the original defendants - appellants that the first Appellate Court having held that there was no partition and clear cut division of 1/9th share of each of the brothers was wrong in granting decree in respect of R.S. No. 212/1 and simply because there was a sale deed for undivided 1/9th share the decree could not sustain. The sale deed clearly states that his 1/9th share was sold they being co-owners. The defendants are entitled to be in possession of every bit of the lands. Cross-objections have been filed by the defendants challenging that part of the decree refusing injunction with regard to S. No. 211/1.
8. The plaintiff - respondent says in his cross-objections that the first Appellate Court was right in holding that there was a division of properties in S. No. 212/1 and S. No. 211/1 among the three brothers who were the sharers in the said portions, the middle portion in S. No. 211/1 belonged to Khandu and he was in possession of the same as a brother, plaintiff succeeded to the share of Khandu and the first Appellate Court committed an error in law in not noticing this fact and has erred in dismissing the suit with regard to this portion. In other words, the Appellate Court committed error in coming to the conclusion that the right of Khandu devolved by survivorship on the plaintiff and the defendants.
9. The following substantial question of law has been formulated during admission:
'Whether the Court below could, in law, grant a decree for permanent injunction in respect of the suit property, the property not having been divided among the members of the family, who are entitled to shares in the same?'
10. Everything depends on whether there was a division in these two lands and the three brothers were enjoying different strips separately and exclusively. Even respondents Counsel Sri G.S. Visweswara admits that there was no partition as such among these three brothers by dividing properties by metes and bounds, but it was a sort of family arrangement made by them. They have been in actual possession of the strips as shown in the plaint and therefore the first Appellate Court was right in giving a decree in favour of the appellant-plaintiff in this appeal. It may be mentioned here at once that both the Courts have found that Khandu sold away his 1/9th share in two properties and therefore this finding of fact is now concluded. It may also be noted that Khandu died unmarried and therefore the property devolved by survivorship on whomsoever is entitled under the Hindu Succession Act. This aspect would be considered at a later stage.
11. The trial Court found as a fact on evidence that there is no division in these two lands and the defendants have clearly denied the correctness of the sketch given by the plaintiff. It has also observed that the recital in the sale deed is that the plaintiff has purchased 1/9th joint share of Khandu. Referring to the evidence of defendant -D.W.1 it observed that tobacco was cultivated by them jointly, they shared the income and therefore their names were not shown separately. However, plaintiff purchased only 1/9th share of Khandu. This finding was reversed by the first Appellate Court. In para 16 it observed that by virtue of the registered sale deed the title as well as possession with regard to the share of Khandu passed on to the plaintiff and therefore there was reason to believe that the plaintiff was in possession of 2/3rd interest or 2/9th share in S. No. 212/1 if the existence of three strips is believed. At para 13 the first Appellate Court observed as follows and this is challenged in this appeal :
'The documentary evidence tendered by plaintiff is least helpful to him. On the contrary, it has got the effect of negativing his assertion that he is in possession of 1/3rd interest or 1/9th share of Khandu. Since both the rival parties lay a claim over the interest or share of Khandu and each one claims to be in possession of 2/3rd interest or 2/9th share, an inference can be drawn that there were 3 strips in both the suit lands. This inference is corroborated by the fact that the co-sharer of the other two branches of Bastavade family had effected divisions in respect of their 1/3rd share each. The division of strips could not be officially recognized because of the Prevention of Fragmentation Act which is in force.'
Thus, according to it if the case of the plaintiff is viewed in this background, there is reason to believe that there are three strips in each of the suit lands and the division was effected for the sake of convenience. It further observed that the defendants claim that they too are in possession of 2/3rd interest or 2/9th share in each of the suit lands that there are three different strips in existence in each of the suit lands. It follows that the recital in the sale deed Ext.P-2 that the deceased Khandu sold his 1/9th undivided share in S. No. 212/1 loses its evidentiary value. Such a recital according to the Appellate Court has to be made because of the prevalence of Prevention of Fragmentation Act which debars division of property resulting in creation of fragments. The trial Court had also made a reference that the middle strip of Khandu in S. No. 212/1 was sold to the plaintiff.
12. Sri G.B. Shastri, has urged that the finding of the Appellate Court by inference regarding the existence of strips is wholly untenable for the simple reason that none pleaded that provisions of Fragmentation Act came in the way. Reference was only made to the shares and not actual divided strips. Secondly, an inference appears to have been drawn because both parties make a claim over the shares of Khandu. Therefore, ultimately, it is a finding of fact and that fact arrived at by the first Appellate Court is challenged in this appeal as being perverse and not based on proper appreciation of the evidence. Though this was not made as point of law, the same requires to be considered as it has been raised during arguments by both sides and considerable arguments advanced on this finding. There is no concurrent finding. Hence, this Court is called upon to examine the same as arrived at by the first Appellate Court.
13. The first Appellate Court was wrong in straightaway brushing aside Ext.P-2 as losing its evidentiary value simply because even the defendants were claiming the share of Khandu. This is the foundation of the claim of the plaintiff and a true translation of the Marathi sale deed produced before the trial Court and in dispute is as follows :
It is significant to note that S. No. 212/1 measures 5 acres 38 guntas including fallow portion belonging to Khandu and the plaintiff. It also does not make mention of the existence of the three strips as described by the plaintiff and that Khandu was in possession of middle strip. Secondly, it does not describe what exactly was the area of this strip and the boundaries thereof. As far as the strips are concerned, practically there is no evidence adduced by the plaintiff sand there is nothing to lay hand upon by one of the Court, according to the grievance now made out by the appellants is unwarranted, that there was a division of these co-owners i.e., the plaintiff as particular strip as belonging to the deceased Khandu. Now, taking the Record of Rights extracts which are produced at Ex.P.3 and P.4, the one at Ex.P-4 relates to S. No. 212/1. Along with the present parties to the suit it appears even Laxmi Bai and Thanibai are the joint owners and in Ext.P-4 it is shown that Shivabai and Laxmibai are entitled to 1/3rd share each, whereas Mallu, Khandu and Ramu are entitled to 1/9th share each. Similar are the entries in Ext.P-3 with regard to S. No. 211/ 1. Perhaps after Khandu died, the share of Ramu was enlarged to 2/9th. The observations of the first Appellate Court, according to the grievance now made out by the appellants is unwarranted, that there was division of these lands into strips. As could be gathered from paragraph 13 of its Judgment, it observed as follows:
'The documentary evidence tendered by plaintiff is least helpful to him. On the contrary, it has got the effect of negativing his assertion that he is in possession of 1/3rd interest or 1/9th share of Khandu. Since both the rival parties lay a claim over the interest or share of Khandu and each one claims to be in possession of 2/3rd interest or 2/9th share, an inference can be drawn that there were three strips in both the suit lands. This inference is corroborated by the fact that the co-sharers of the other two branches of Bastavade. family had effected division in respect of their 1/3rd share each. The division of strips could not be officially recognised because of the Prevention of Fragmentation Act which is in force. If the case of the plaintiff, is viewed in this background there is reason to believe that there are three strips in each of the suit lands and a division was effected for the sake of convenience.....'
14. The repeated reference by the first Appellate Court to the Prevention of Fragmentation Act has no foundation or basis for the reason that none pleaded it and it is not shown even during arguments in this Second Appeal how this Act comes in the way of effecting division. What is the area as a fragment in that particular locality is not at all brought on record. Therefore, the alleged impediment under this Act, has to be ignored.
15. The point canvassed during admission was that the first Appellate Court could not in law have granted a decree for permanent injunction in respect of the suit property, the property not having been divided among the members of their family who are entitled to shares in the same. In view of the conflicting findings of the Courts below it has now become necessary to see if as a fact there was a division in these properties and each of the brothers or branches were enjoying their shares separately at least by mutual agreement. In order to decide the point at issue it is necessary to recapitulate if there could be division in the properties without there being partition by metes and bounds; whether intention to separate is proved by the facts on record and whether there was enjoyment of the separate strips by the plaintiff and defendants in defined shares. The intention of the parties is a dominating factor in determining the rights in the properties. Admittedly, there has been cessor of commensality. Parties have agreed that all these three brothers, namely, Mallu, Khandu and Ramu were living separately in different houses. None other than the defendant D.W. 1 Raghunath has admitted in the cross-examination that there are three houses, one belonging to Khandu another to Ramu (plaintiff) and the other belonging to Mallu. At a later stage, he also stated that their houses were divided. Some times it may happen that cesser of commensality may be for valid reasons but in agricultural family cultivation of the lands may continue jointly and the family properties may be under the joint enjoyment of the co-owners without there being any division in them by metes and bounds. Joint harvesting of yield is not uncommon. In order to show that strips were effected as a fact, the respondents' Counsel has referred to certain admissions of the parties.
16. Here again D.W. 1 who is son of Mallu stated in the evidence in chief that his father and both uncles had never divided lands in strips. They were cultivating the same jointly and were getting crops divided. Khandu was alone, he was married and was taking food with them. Then comes his evidence which is as follows:
'........We were helping him in cultivation of his share. Khandu's share in the suit survey number was never in possession of plaintiff. We do not know whether the plaintiff has purchased the share of Khandu in R.S. 212/1. Till the death of Khandu we were in possession of Khandu's share. As Khandu was staying with us, his share in these lands were with us.........'
He then admitted in the cross-examination that Lakshman of another branch has got separate strips and so also Thanibai and Shivabai. Even in the Record of Rights the share of Lakshman is shown as 1/3rd. According to him, he has got a separate strip in his own in the same S. No. 212/1. The strip of Laxmibai is to the south of these lands and of Thanibai and Shivabai to its north and to their north is the strip of Laxman. To its north is the strip belonging to their branch. It is also elicited that this defendant used to get licence for tobacco. Though the plaintiff has led evidence with regard to the formation of strips by cross-examining two witnesses, it is conflicting and at variance in as much as neither of two witnesses P.Ws.2 and 3 has definitely stated when the strips were effected. Therefore, their evidence is wholly unreliable to show that the strips were made to their knowledge.
17. The appellants' Counsel has relied on certain presumptions available with regard to joint Hindu family. The essence of a coparcenary under the Mitakshara law is unity of ownership, it is in the whole body of coparceners and according to the true notion of an undivided family governed by the Mitakshara Law, no individual member of that family, whilst it remains undivided, can predicate, of the joint and undivided property, that he, that particular member, has a definite share, one-third or one-fourth. His interest is a fluctuating interest, capable of being enlarged by deaths in the family, and liable to be diminished by births in the family. It is only on a partition that he becomes entitled to a definite share. The most appropriate term to describe the interest of a coparcener in coparcenary property is 'undivided coparcenary interest'. The nature and extent of that interest is defined in Section 235. The rights of each coparcener until a partition takes place consist in a common possession and common enjoyment of the coparcenary property. Therefore, he has urged that unless there is a division among the members of the coparcenary each member cannot definitely say what exactly is his share in the property. It is also his argument that the plaintiff himself is not in a position to say what is the extent of each of the strips and no boundaries have been given and therefore the plaintiff cannot lay his hands on any definite strip.
18. On the other hand, it is argued for the respondents that there could be partition by an agreement and even though there is no division by metes and bounds strips could be created by mutual agreement. Under paragraph 322 learned authors of Hindu Law by Mulla have observed what partition is and how it could be effected. It consists in a numerical division of the property; in other words, it consists in defining the shares of the coparceners in the joint property; an actual division of the property by metes and bounds is not necessary. Once the shares are defined, whether by an agreement between the parties or otherwise, the partition is complete. Even after the shares are so defined, the parties may divide the property by metes and bounds, or they may continue to live together and enjoy the property in common as before. But whether they do the one or the other, it affects only the mode of enjoyment, but not the tenure of the property. The property ceases to be joint immediately the shares are defined, and thenceforth the parties hold the property as tenants in common. Therefore, the agreement between the members of the joint family to hold and enjoy the property in defined shares as separate owners, although there may be no actual division of the property by metes and bounds. The observations of Judicial Committee, in the case of APPOVIER v. RAMA SUBBA AIYAN, (1866) 11 M.I.A. 75 are quoted with approval in the words of Lord Westbury. The following position is clearly stated at page 451 :
'Then, if there be a conversion of the joint tenancy of an undivided family into a tenancy in common of the members of that undivided family, the undivided family becomes a divided family with reference to the property that is the subject of that agreement and that is a separation in interest and in right, although not immediately followed by a defacto actual division of the subject matter. This may at any time be claimed by virtue of the separate right..........We find, therefore, a clear intention to subject the whole of the property to a division of interest, although it was not immediately to be perfected by an actual partition. It (the deed) operated in law as a conversion of the character of the property and an alteration of the title of the family, converting it from a joint to separate ownership, and we think the conclusion of law is correct, viz., that that is sufficient to make, a divided family, and to make a divided possession of what was previously undivided without the necessity of its being carried out into an actual partition of the subject matter.'
Thus, it is enough to constitute a partition that there should be a division of title. It is not necessary that there should be actual division of the property. Again as observed in paragraph 248B there could be a Family Arrangement or Family Settlement which does not rest on any special rule of Hindu Law but flows from general principles and policy of law and it is governed by a special equity peculiar to itself. It may be only to settle some bonafide disputes among the members. In paragraph 235 the following observations are apposite:
'The members of a joint family may agree between themselves without coming to a partition, to occupy for their convenience separate portions of the joint property. In fact, that is the general practice. It amounts to exclusive possession of the separate portion enjoyed by each member by the consent of all; it may be terminated and a completely new arrangement may be made, at any time, by the members of the family, if they think fit do so.'
19. Basing his arguments on these observations Sri G.S. Visweswara urged that there was nothing uncommon if these parties entered into an agreement among themselves that they should be in separate possession of the strips in these lands and their conduct clearly goes to show that they had taken definite shares among them-selves and were enjoying the same separately and it is not the case of any of the parties that crops were being divided. He also referred to the observations of S.D. Mitra in 'CO-OWNERSHIP AND PARTITION' and also the pleadings of the parties.
20. At page 79 the learned Author S.D. Mitra in this context has observed that the entire body of co-owners may possess and enjoy all the joint properties jointly. Each co-owner may instead possess and enjoy specific portions of the joint properties by an amicable arrangement and such exclusive possession is not wrongful. Such an arrangement remains effective, until all the co-owners agree upon a different arrangement or a partition by metes and bounds is effected, either amicably or through the intervention of the Court. The written statement of the defendants is precisely in support of such an arrangement and the plaintiff has also pleaded existence of strips by such division. The evidence of Raghunath D.W.I. as pointed out above, clearly makes out a case of such Separate enjoyment of respective shares by themselves and there was no actual division by way of partition as understood in law.
21. Therefore, there is nothing unlawful for members of a joint family taking possession of portions of the joint family properties for the sake of convenience even though there is no partition as such. This is what happened in the instant case and definite shares have been taken by each of the three brothers including the deceased Khandu. Even the defendant speaks about he being in possession of Khandu's share and all the parties have understood what exactly they mean and therefore the possession of different strips by these three brothers was by way of an amicable arrangement for convenience and to enjoy the same till there is actual partition.
22. Both the Courts have held that Khandu sold away his share and it is a question of fact now concluded. Even though the boundaries are not specified and measurements are not given, from the evidence of the parties it is clear that they are in possession of different strips. Therefore, they are entitled to be in possession of their respective strips until they choose to change this arrangement amicably or through the intervention of Court so as to divide strips more beneficially or equitably according to their shares. In my opinion, it is idle to contend that all of them are joint and jointly enjoying the entire extent of land in S. No. 212/1. If such a construction is put on the evidence it leads to disturbance of settled conditions and upset the peace and tranquility prevailing. It also appears that the defendants have not taken kindly to Khandu selling away his share to the plaintiff and it is only natural human conduct when the plaintiff appears to be the sole beneficiary. Though an inference that partition by metes and bounds is not possible, I hold that the parties to the suit are in possession of their respective shares by mutual arrangement. It is lawful and therefore the plaintiff-respondent is entitled to an injunction against the appellants restraining them from interfering with his possession till the present arrangement is disturbed by some other arrangement or in a suit for partition.
23. The Appellate Court dismissed the suit in so far as S. No. 211/1 is concerned. In the cross-objections it is prayed that injunction be granted in respect of this portion as well. Plaintiff-respondent is entitled to an injunction against the appellants from interfering with the joint possession of this land. To that extent the Judgment and Decree of the first Appellate Court is not correct. It has been argued that only the brothers are entitled to succeed to the share of Khandu and not the sons of the brother. But joint possession of all the parties is not disputed. Therefore, the respondent is entitled to an injunction in respect of this as well.
24. For the reasons aforesaid, the appeal of the appellants is dismissed with regard to Sy. No. 212/1 but the decree of the Appellate Court is modified by granting injunction in favour of the respondent plaintiff restraining the appellants-defendants from interfering with his possession of strips of Khandu and his own strip till some other amicable arrangement comes into existence or through the interference by Court in a suit for partition.
25. Cross-objections of respondent are allowed and the appellants are restrained from interfering with his joint possession of S. No. 211/1. The appellants to pay one-half the costs of the respondent in this appeal and bear their own.