1. I have read the judgment of my learned brother, Kaul and agree with the answers proposed to be given by him. I only wish to add that, to my mind, the texts of the Mitakshara leave no doubt that the sons have a right by birth both in the self-acquired as well as in the ancestral property of the father. In the Mitakshara part II, chap. I, Section 1 (3) heritage is divided into two classes, unobstructed and obstructed, (apratibandha) and (sapratibandha). The wealth of the father or of the parternal grand-father is declared to be apratibandha in which the sons or grandsons get a right by birth. Again in the same chapter, Section 1 (27) it is laid down that 'It is a settled point, that property in the paternal or ancestral estate is by birth.' In the ancestral joint family property the father has the right to make a transfer for legal necessity and for payment of his antecedent debts which are not tainted with immorality (avyavaharik). In the self-acquired property the texts provide that as the property has been acquired by the father he has got greater rights of transfer in the same, and that being so it follows that if partition is claimed in the life. time of the father, no share can be claimed by the separating sons and grandsons in the self-acquired property of the father.
2. If the father dies as a member of a joint Hindu family with his sons and grandsons, leaving self-acquired and ancestral property, the property in the hands of the sons and grandsons in which they have acquired interest by birth is joint family property, and they must hold it as joint owners without specification of shares. If the sons and grandsons have already separated in the lifetime of the father, then there being no joint family, the paternal estate that is inherited by them can be held by them only as co-owners. If the father was joint with some of his sons and grandsons and separated from the others, the property both self-acquired and ancestral belonged to the joint family of which the father was a member. On the death of the father there can, therefore, be no question of his separated sons or grandsons getting a share in the same. I respectfully agree on this point with the majority decision in Ganesh Prasad v. Hazari Lal and Ors. A.I.R. (29) 1942 ALL. 201 F.B.
3. The following two questions have been referred by a Division Bench to a Full Bench:
1. Do all the incidents attaching to coparcenary property attach to the self-acquired property of a Hindu father which his sons, who were joint with him, get on his death, or do they obtain that property only as joint tenants with the right of survivorship inter se, but with none of the other incidents of coparcenership?, and
2, When there are two or more sons of the person who acquired the property, what are the rights of the descendants of each son vis a vis the other's son or sons in the said property so long as the family continues joint?
4. To bring into clear relief the full significance of these questions, and to show how they arose, it is necessary to give a few facts. The following pedigree will show the relationship of the chief persons to whom reference will be made in the course of this opinion:
BHAWANI DIN| ------------------------| |Mata Din = Mt. Ram Dei Rup Ram(died 1905) (deft.) (died 1906)| || Sri KrishnaRam Kumar (died 1915)| = Mt. KamlapatiManohar Lal (alive)
5. The suit out of which this reference arises was brought by three plaintiffs, 1. Mt. Gayarsi 2. Mangat Ram and 3. Mansa Ram for possession of one room in a house in the city of Lucknow. Their case was that Bhawani Din was the owner of this house. It was his self-acquired property. He formed a joint family with his two sons, Mata Din and Rup Ram. No grandson was born to Bhawani Din in his life-time and on his death his two sons succeeded to his property including this house. That Mata Din died in 1905, leaving his widow Mt. Ram Dei and a son. Ram Kumar. Rup Ram died in 1906. He left a son Sri Krishna. Sri Krishna died in 1915 leaving his widow Kamlapati. That on 9th September 1940, Ram Kumar transferred the house in question to plaintiffs 1 and 2 by a deed of sale and some time after the vendees let it out to plaintiff 3. That in March 1941, Mt. Ram Dei, widow of Mata Din, wrongfully took possession of a room in the said house. Accordingly the three plaintiffs brought against her the suit which has given rise to this reference, for possession of that room.
6. A number of pleas were raised in defence, but only two of these need be mentioned for the purposes of the present reference. It was con. tended on behalf of Mt. Ram Dei that on the death of Bhawani Din the house which was inherited by his sons did not become their joint family property but that each of them took a moiety share therein with a right of survivorship between them. That with the birth of Ram Kumar and Sri Krishna, as each of them took an interest in the share held by his father, there came into existence two coparcenaries - one consisting of Mata Din and Ram Kumar and the other of Rup Ram and Sri Krishna. According to the defendant's contention the interest of these two coparcenaries in the house was equal, but after the death of Mata Din and Rup Ram there was no right of survivorship between Ram Kumar and Sri Krishna. That each of them became owner of only that half share in the house which was held by his father. They were not coparceners with respect to this property. That on the death of Sri Krishna his half share devolved upon his widow, Kamlapati and Ram Kumar had no right to transfer it by sale or otherwise. It was further pointed out that Ram Kumar's own share had already been transferred by him by a deed of sale in the year 1919. It followed accordingly that no property passed to the plaintiffs 1 and 2 under the deed of sale executed by Ram Kumar on 9th September 1940.
7. The other plea raised by her was that as the widow of Mata Din, she had a right of residence in the house which could not be defeated by transfer without necessity.
8. The trial Court held that Mata Din and Rup Ram got the house as their joint ancestral property, but they separated five years before the former's death. Accordingly, on Sri Krishna's death his widow succeeded to his half share in the house. As Ram Kumar had already transferred his share by a deed of sale in 1919, the subsequent deed of September 1940, did not confer any rights upon the purchasers. It also upheld the contention put forward on behalf of Mt. Ram Dei as regards her right of residence in the house. In view of these conclusions, the suit was dismissed.
9. On appeal the learned Additional Civil Judge of Lucknow agreed with the trial Court as to the nature of the rights acquired by Mata. Din and Rup Ram. He found, however, that the alleged separation between them was not proved. He accordingly held that the house in question remained the joint family property throughout, and on the death of Sri Krishna, Ram Kumar, as the sole male survivor of the family, became the owner thereof. As to Mt. Ram Dei's claim to her right of residence, the learned Judge held that she had voluntarily relinquished it. The claim was accordingly decreed. Dissatisfied with this decision, Mt. Ram Dei preferred a second appeal in the Avadh Chief Court.
10. The case originally came up for consideration before Misra J. who entertained some doubt as to the correctness of the decision in Baijnath v. Maharaj Bahadur A.I.R. (19) 1932 Oudh 158 which was relied on by the appellant and referred the case for decision to a Division Bench. The Division Bench (Misra and Kidwai JJ.) upheld the finding of the Court of first appeal that Mt. Ram Dei had relinquished her right of residence in the house. They noticed that the decision in Baij-v. Maharaj Bahadur AIR (19) 1932 Oudh 158 and the subsequent cases of Mt. Sirtaji v. Algu Upadhyay A.I.R. (23) 1936 Oudh. 331, Ram Bharosey v. Ram Bahadur Singh A.I.R. (35) 1948 Oudh 125 and Sujandas Alimchand v. Shanherdas Gopaldas A.I.R. (24) 1937 Sind 36 supported the contention put forward on be-half of Mt. Ram Dei. Reference was also made in the course of argument before the Division Bench to Badri Nath v. Hardeo A.I.R. (17) 1930 Oudh 77 and Janki v. Nand Ram 11 ALL. 194 which : lent support to the view taken in Baijnath's case A.I.R. (19) 1932 Oudh 168). In view, however, of the decision of a bench of the Patna High Court in Shyam Behari Singh, v. Rameshwar Prasad Sahu A.I.R. (29) 1942 Pat. 213 and of a Full Bench of the Allahabad High Court in Ganesh Prasad v. Lala Razari Lal A.I.R. (29) 1942 ALL 201 they decided to refer the two questions mentioned above to a Full Bench.
11. The answers to these questions will depend on a consideration of the process by which the property of a Hindu father is taken by his sons, and an examination of the legal incidents of this process. Broadly speaking, the taking of property owned by a person by his relations at Ms death is common to all modern systems of law. This is called 'inheritance,' and the relations who take a dead person's property by this legal process, his 'heirs'. They take his property not because they had any interest therein, during the owner's life-time but - (1) because on death his interest therein naturally ceases; and (2) because they are related to him by blood, marriage or adoption. The order in which different heirs take the property is different in various systems of jurisprudence. It is, however, a feature peculiar to Hindu law that certain relations of an owner of property acquire an interest in his property before his death. They take an interest in his property by the mere fact of their own birth. This is altogether independent of the death of the owner. Under the Mitakshara Law, sons and grandsons take an interest in their father's property by birth- but Viramitrodaya explains that grandsons are also in the same category. This process is called doctrine of acquisition of property by birth. This peculiar feature of Hindu Jurisprudence is intimately connected with the institution of 'joint family' and its concomitant 'coparcenary property'. The statement of the law on the subject is clear and unambiguous:
Therefore property in the paternal or grand father's estate is only by birth 'etc. etc.' In chap. I, Section 1 of the Mitakshara which is headed 'Definition of Inheritance and Partition'- Disquisition on property : -the author raises the question in paragraph 7-
'Does property arise from partition or does partition of pre-existing property take place?' Then followed a fairly long discussion of the matter and the question is again mooted in para' graph 17-
'Next the doubt to be cleared is whether property arises from partition or whether partition presupposes property.
A number of objections are then put forward by the hypothetical objector and answered and ultimately the author winds up with the statement of the law in the passage quoted above in Sanskrit, oh. I Section 1, Para. 27 (S.S. Setlur). This distinction is forcefully brought out in the Mitakshara by dividing heritage into two clauses and Mitakshara Ch. I, Section 1, para. 3 is translated by Setlur as follows:
It (Daya) is of two sorts 'unobstructed' and 'obstructed'. Now the wealth of the father and of the paternal grandfather, becomes the property of his sons and his grandsons in right of their being his sons and grandsons respectively and that is an inheritance not liable to obstruction. But Property devolves on paternal uncles brothers and the rest, 'upon the death of the owner and in default of male issue : and thus the existence of a son and the existence of the owner are impediments to succession; and on their ceasing the property devolves (on the successor) in right of his being uncle or brother. This is inheritance subject to obstruction. The same should be inferred in respect of their sons and the rest.
12. The next question that may be asked is whether the right of the son, grandson and great-grandson to take an interest in the property of the father, grandfather and great-grandfather is confined to any particular class of properties or extends to all kinds of property owned by the father.
13. It is pointed out by Dr. Priya Nath Sen in his Hindu Jurisprudence page 130 (Tagore Law Lectures, 1909) that the separate mention of paternal and grandpaternal estates (in the passage quoted earlier as being both subject to the accrual of the son's right by birth implies 'that the son acquires his right by birth in all the properties of his father whether it be ancestral or not, and the conclusion is further strengthened by the fact that in winding up the discussion Mitakshara says that 'although property arises by birth in paternal as well as grand-paternal (ancestral) estate, we shall mention a distinctive peculiarity in dealing with the text 'land acquired by the grandfather etc.' The peculiarity so promised to be subsequently stated being that in regard to property derived from the grandfather, the father's right of free alienation is restrained by the co-equal co-ownership of the son, while in regard to the properties acquired by the father himself (whether by collateral succession or any other mode of acquisition) the son has no right to object to the father's alienation but ' must acquiesce therein'.
14. Paragraphs 9 and 10, Chapter I S.V. of the Mitakshara make this clear beyond dispute:
9. So likewise the grandson has a right of prohibition, if his unseparated father is making a gift, or a sale, of effects inherited from the grandfather, but has no right of interference himself if the effects were acquired by the father. On the other hand he must acquiesce, because he is dependent.'
'10. Consequently the difference is this : Although he has a right by birth in his father's and grandfather'a property, still he is dependent on his father in regard to the paternal estate, and since, he has a predominant interest as it was acquired by himself, the son must acquiesce in the father's disposal of his self-acquired property; but since both have equally a right in the grandfather's estate, the son has a power of interdiction (if the father be dissipating the property).
15. Dr. Sen (Hindu Jurisprudence) records his conclusion at page 131 thus:
My conclusion, then, is, that the right which a son acquires by birth in his father's property is not limited to ancestral property alone, but extends over the entire property of the father, although the extent of the right is not everywhere the same but depends on the nature of the property.
16. Mayne in his Hindu Law, 10th Edn. expresses the same view. The learned Author says in paragraph 271 at page 348:
It follows from the conception of unobstructed heritage (Apratibandha Daya) and of the sons' right vested by birth that an undivided son takes not only the grandfather's property but also the property acquired by his father, not strictly by inheritance but by virtue of his right by birth and only as unobstructed heritage (Apratibandha Daya).
17. Dealing with the same subject the Smriti Chandrika says (chapter VIII paragraph 21):
It would seem from the above construction that in the case of the father's property, the ownership of the father and son is unequal (equality of ownership having been specifically ordered in grandfather's property alone). But this gives rise to the question, how could there exist such inequality while one possesses a right by birth in both his grandfather's and father's property? The reply, however, is that in the case of the grandfather's property, the ownership and also independent power are both equal in the father and the son. Whereas in the case of father's property while he is alive and free from defect, he (the father) alone possesses independent power and not the son. Hence arose the stated difference (Setlur, 1911 at pages 255-6).
18. (1) The Parasar Madhaviya J.C. Ghosh's Hindu Law, vol. II page 615; (2) the Vyavahara Mayukh-J. C. Ghosh's Hindu Law vol. II page 1040; and Veera Mitrodaya-Setlur II, (285)-take the same view.
19. Mayne observes at page 350:
The son's right by birth does not therefore extend to his enforcing, a partition or interdicting an alienation of his father's property. The right, however, remains a real birthright, though dormant, and enables the son to succeed to the property by survivorship as Apratibandh Daya.
20. This was the view taken by the High Court of Madras in Nana Tawker v. Ramchandra Tawker 32 Mad. 377 which followed Fakirappa v. Yellappa 22 Bom. 101. The contrary view taken by a Full Bench of Madras High Court in Vairavan Chettiar v. Srinivasachariar A.I.R. (8) 1921 Mad. 168 is clearly opposed to express texts of Mitakshara and other Sanskrit authorities. The decision in Vairavan Chettiar's case A.I.R. (8) 1921 Mad. 168 (F.B.)) was given in 1921. But in a subsequent case, Venkateswara Pattar v. K. Mankayammal A.I.R. (22) 1935 Mad. 775 at p. 778 Varadachariar J. took the view that according to the scheme of Mitakshara law the succession of sons even in respect of their father's self-acquired property is by survivorship.
21. As pointed out by Mayne (pages 350-51) the misconception that a son does not take an interest in his father's self-acquired property by birth has probably arisen on account of the observations of their Lordships of the Judicial Committee in Sartaj Kuari v. Deoraj Kuari 15 I.A. 51 that there can be no right by birth Where there is no right to partition. But this statement which was made with reference to impartible estates has been explained in subsequent cases that the existence of survivorship is not inconsistent with the dominant interest possessed by the holder of an impartible estate and with the absence of a right to partition or to interdict an alienation on the part of the other members of the family. This is established by the decision of the Judicial Committee in Raja Jogendra Bhupati Hurri Chundun Mahapatra v. Nityanund Mansingh 17 I.A. 128. That case makes two points clear:
1. That the rule of succession to impartible estates and partible estates is the same; and
2. Where there is a coparcenary between the father and his son, the ordinary rule of survivorship incidental to a coparcenary applies. This is so irrespective of whether the property in the hands of the father is one wherein the son could or could not claim a share by partition and whereof he could or could-not interdict alienation.
That was a case of an impartible raj, The Raja a Sudra died leaving one legitimate son N and two illegitimate sons by two women. On the Raja's death N, the legitimate son, succeeded to the raj. He died leaving no son, but three widows. It being a Sudra family, the senior of the two illegitimate sons claimed the estate. It was held that as he formed a coparcenary with his father and brother, he was entitled to succeed by right of survivorship. It is noteworthy that the absence of a right to claim partition in one coparcener did not affect his right to succeed by survivorship. As laid down by Sir Dinshaw Mulla in Shiba Prasad Singh v. Rani Prayag Kumari Debi , though the other rights which a coparcener acquires by birth in impartible property no longer exist, the birth right of the senior member to take by survivorship still remains. There is thus no foundation for the erroneous belief that a son does not take an interest in his father's self-acquired property by birth. The dictum in Sartaj Kuari's case 15 I.A. 51 that:
The property in the paternal or ancestral estate acquired by birth under the Mitakshara law is, in their Lordship's opinion, so connected with a right to a partition, that it does not exist whore there is no right to it.
Sartaj Kuari v. Deoraj Kuari 15 I.A. 51 at p. 64 must be understood with reference to the question which was there before their Lordships. In that case, it may be recalled, the Raja who was owner of an impartible estate subject to the rule of primogeniture, made a gift of 17 villages, forming part of the estate, to his younger wife, and the question arose whether the gift was valid or not. The dictum should not, in view of subsequent decisions, be extended beyond the facts of the case in which it was laid down : See Shiba Prasad Singh v. Rani Prayag Kumari . The only question which arose for decision was whether the Raja could make an alienation without the consent of his son.
22. The Hindu belief that the father is born in the son colours their whole law of inheritance. This persistence of the self in the lives of children and identity of materials of the body continues according to Hindu belief to the fourth generation i.e., up to the great grandson. 'Up to that the body is the same; after that there is a different body' Devala cited by Aparark, Madhava and others:
From the several limbs (of my body) art thou produced, from my heart art thou born; thou art 'self called a son; mayest thoulive a hundred autumns.' (Sam Veda, Mantra Brahmana P. I, K. 5, 17 J.C.?Ghosh's Hindu Law Vol. I, page 53.)
23. The term 'sui herades' in Roman Law means persons 'who took an inheritance that was their own, who were heirs not of the pater families, but of themselves, they took what belonged to them already and only received possession of that over which they had even in the lifetime of the parent a kind of ownership' (Saunders Justinian page 216 ) The same notion permeates the Hindu Law of Inheritance in the case of a son, grandson and great grandson. If this is borne in mind the statement of law in the Mitaksbara and other Hindu Law books is easily understood.
24. The dictum of Lord Hobhouse in Rao Balwant Singh v. Rani Kishori 25 I.A. 54 that the father of an undivided Hindu family subject to the Mitakshara law has full power of disposition over his self-acquired property is not inconsistent with the view taken by me that a son acquires an interest in his father's self-acquired property by birth. Nor is there anything in what was said by Sir Shadi Lal in Muhammad Husain Khan v. Babu Kishva Nandan Sahai (P.C.), when explaining the previous decision of the Board in Raja Chelikani Venkataramanayyamma Bahadur Garu v. Raja Chelikani Venkayyamma. Garu 29 I.A. 156 or in considering the decision in Atar Singh v. Thakur Singh 35 I.A. 206 which conflicts with that view.
25. If the sons acquire an interest in their father's self-acquired property by birth, it follows that on the father's death, if such property is left undisposed of, the sons who form a joint family with him take it by right of survivorship. The contrary view expressed in certain reported cases and text books must be taken to be not sound.
26. It was observed by Lord Lindley in Raja Chelikani Venkataramanayyamma Garu v. Raja Chelikani Venkayyamma Garu 29 I.A. 156 at p. 156 that members of a joint family who succeed to self-acquired property take it jointly. In laying down the above rule he could not but have intended to hold that it was taken by them as joint family property. For, as observed by Lord Watson in Jogeswar Narain Deo v. Ram Chand Butt 23 I.A. 37 at p. 44 the principle of joint tenancy is unknown to Hindu law except in the case of co-sharership between the members of an undivided family. It was laid down by Phear J. in a case decided so far back as 1872 Rajah Ram Narain Singh v. Pertum Singh 20 W.R. 189 that property is separate when it belongs to one member of a joint family alone, and not to the others jointly with him. As long as it is separate and in the condition of self-acquired property, the person who is the holder of it has no one to consult in regard to the disposal of it except himself. But the moment it passes from his hand by descent into the hands of some one in the next generation it becomes joint family property-the property of several persons united together as a joint family with regard to it-the property of a new joint family springing from a now root. And it continues to go down by one rule of descent only. This decision was approved of by the Judicial Committee in Raja Chelikani Venkataramanayyamnia v. Raja Chelikani Vonkayyamma Garu 29 I.A. 156 at p. 165 where the view of the Calcutta High Court in Jasoda Koer v. Sheo Pershad Singh 17 Cal. 33 that the sons of a daughter (she being the only child) succeeded to their grandfather's property in undivided moieties and not jointly with benefit of survivorship was held to be erroneous. If a daughter's sons thus take their maternal grandfather's property, there can be little doubt that the sons of a Hindu who form a joint family with him succeed to his self-acquired property by survivorship and all the incidents of coparcenary property attach to such property in their hands. Indeed Mr. Mayne's argument in Raja Chelikani Venhataramanay. yamma v. Raja Chelikani Venkayyamma Garu 29 I.A. 156 which was appreciatively referred to by Lord Lindley as 'very able' and was given effect to was:
No doubt all unobstructed inheritance is taken jointly, but it does not follow that unless it is unobstructed it is taken as tenants-in-common.
27. The same rule was laid down by a Bench of the Patna High Court in Shyam Behari Singh v. Rameshwar Prasad Sahu A.I.R. (29) 1942 Pat. 213 by Harries C.J. and Chaiterji J. that the self-acquired property of the father is taken by sons, who formed a joint family with the father as joint family property and is not taken by them as tenants in common.
28. In Ganesh Prasad v. Lala Hazari Lal A.I.R. (29) 1942 ALL. 201 the following question was referred to a Full Bench:
On the death of a Hindu leaving self-acquired property, do the undivided sons succeed to such property to the exclusion of the divided son under the Mitakshara law.
Of the three Judges who composed the Full Bench, Collister and Bajpai JJ. answered the question referred in the affirmative. But Hamilton J. took a contrary view. Though Collister and Hamilton JJ. answered the question referred differently, they agreed that the undivided sons of a Hindu succeeded to the self, acquired property of their father by inheritance and not by survivorship, Bajpai J. who agreed with Collister J. in answering the question referred to the Full Bench, however, pointed out that when two or more sons succeed as heirs to the self-acquired property of their father, they take the property as joint tenants with a right of survivorship. He referred in this connection to Rajah Ram Narain Singh v. Pertum Singh 20 W.B. 189 and Raja Chelikani Venkataramanayyamnia v. Raja Chelikani Venkayyamma Garu 29 I.A. 156. He observed 'survivorship can under (certain) circumstances exist even when there is no right of partition and no right to restrain alienation.
29. Collister J, observed at page 204 col. 2 of the report Ganesh Prasad v. Lala Hazari Lal A.I.R. (29) 1942 ALL. 201
I find some difficulty in appreciating upon that principle, under the Hindu law, the sons can take by survivorship the self-acquired property of their deceased father, and upon principle and upon authority undivided sons succeed to the self-acquired property of their father by inheritance as joint tenants with a right of survivorship inter se. It is a case of joint succession by inheritance.
With the greatest respect for the learned Judge it may be pointed out that the principle is the text of the Mitakshara to which reference has already been made. 'Therefore it is settled point that the property in the paternal or grand paternal estate is by birth etc. etc.'
30. Reliance in support of the view that the principle of survivorship does not apply when the self-acquired property of a Hindu passes to his sons on his death was placed on the decision of Turner L.J. in Katama Natchidr v. Sri-mut Rajah Moottoo Vijaya Ranganadha Bodha Gooroo Swamy Periya Odaya Taver 9 M.I.A. 539 at p. 615:
But the law of partition shows that as to the separately acquired property of one member of a united family, the other members of that family have. neither community of interest nor unity of possession. The foundation, therefore, of a right to take such property by survivorship fails, and there are no grounds of postponing the widow's right to any superior right of the coparceners in the undivided property.
It may be pointed out that the above quoted remarks can have no bearing on the question under consideration here, whether the sons of a Hindu who form a joint family with him take his self- acquired property on his death by survivorship or by inheritance.
31. Those observations were made in course of a discussion relating to the competing rights of widows of a member of a joint Hindu family and of other members of the joint family in respect of the self- acquired property of the deceased member. The question whether the sons of a Hindu who were joint with him would on his death take his self-acquired property by right of survivorship or otherwise did not arise nor was it considered by their Lordships in Katama Natchiar's case 9 M.I.A. 539 P.C. I may in this connection recall the well-known dictum of Lord Halsbury in Quinn v. Leathem 1901 A.C. 490 that a case is authority for what it actually decides and not for any proposition which may seem logically to follow from it.
32. Collister J. referred to the decision of the Judicial Committee in Raja Chelikani Venhataramanayyamma v. Raja Chelikani Venkayyamma Garu 29 I.A. 156 at p. 165
where the sons succeed to the self-acquired property of the father, their inheritance is unobstructed and they take it by survivorship
But I do not think that in the last mentioned case the Privy Council has expressed the view that the sons succeed by survivorship to the self-acquired property of their father.... At page 687 they say 'Members of a joint family who succeed to self-acquired property take it jointly.' This is not the same thing as saying that they take the property by survivorship.
33. With all respect to the learned Judge I Venture to say that the observations of Lord Lindley at page 165 entirely take the matter out of the region of doubt. His Lordship referred to the decision in Jasoda Koer v. Sheo Pershad Singh 17 Cal. 33 and to Saminadha Pillai v. Thangathanni 19 Mad. 70 which followed Jasoda Koer's case 17 Cal. 33. Then he proceeded to observe:
The Calcutta decision appears to their Lordships to. have been based upon a view of Mitakshara law which further investigation shews to be erroneous, namely, upon the view that, according to the Mitakshara law, the doctrine of survivorship is limited to unobstructed successions and to succession to the joint property of re-united coparceners. No authority for such a limitation can be found anterior to the Calcutta case....
He then wound up the discussion with the semark:
The authorities to which their Lordships have referred and others cited by Mr. Mayne and which their Lordships have examined, although not directly in point are clearly opposed to the general doctrine laid down in the Calcutta case.
34. His Lordship expressly declared that the Calcutta view relating to the limited applicability of the doctrine of survivorship was erroneous. There is another passage at page 156 which makes it clear that when Lord Lindley spoke of property being taken jointly he meant the taking of it as joint family property. The passage runs thus : 'It is not suggested that if they succeeded jointly they ever ceased to hold it in the same way.' There would be no point in this observation unless the result of the failure to effect a partition was that the property passed by survivorship to the surviving brother.
35. The views expressed by Hamilton J. need not be examined separately as he assumes that the dictum of the Judicial Committee in Katama Natohiar v. Moottoo Vijaya Ranganadha 9 M.I.A. 539 (P.C.) at p. 513
but the law of partition shows...the foundation therefore of a right to take such property by survivorship fails,
implies that a son does not take an interest in his father's self-acquired property by birth. This as already shown is opposed to express text of the Mitakshara and other Sanskrit books.
36. In Baijnath v. Maharaj Bahadur A.I.R. (19) 1932 Oudh 158 the Chief Court of Avadh took the view that one of the four brothers who constituted a joint family could alienate his share of the self-acquired property of their father, which passed to them on the latter's death without the consent of his brothers. This case was strongly relied on by Mr. Dhaon, learned Counsel for the appellant. It was observed in that case:
(1) that the sons of a Hindu though joint with him acquire no interest in his self-acquired property by birth,
(2) such property devolves upon the sons according to the ordinary rule of succession and not by right of survivorship,
(3) each son inherits a definite share in the property and there is nothing to prevent one of the sons making a mortgage of his share.
(4) such property however becomes ancestral as regards the rights of the sons of the person succeeding.
37. Their Lordships drew attention to the distinction between a Mitakshara coparcenary and an estate in joint tenancy. They observed;
To say that the sons held as joint tenants subject to the incident of survivorship is very different from saying that they held it as coparcenary property without the right of alienating their share.
38. I have already given my reasons for the view that the first proposition quoted above is not well founded. It is opposed to express text of the Mitakshara and other Hindu law books. There is however an observation at p. 226 (p. 3) of the report which is of considerable importance:
Lastly it is admitted that on the death of Munshi Baijnath the property in question devolved on his sons according to the ordinary rules of succession and not by right of survivorship. Each son therefore inherited a definite share in the property.
This admission having been made, it was clear that each son got a definite share. The lower Courts had held 'that it became the joint ancestral property in the hands of his (Baijnath's) sons.' This view, it was contended in appeal, was not correct. In view, however, of the admission that is stated to have been made before their Lordships, that each brother inherited a definite share, and the absence of any evidence to show that there was any thing done by the brothers to convert it into joint family property, it would be a legitimate inference that any brother could alienate his share. So the actual decision turned on the admission that was made. This is clear from the observations at p. 226. Their Lordships referred to the admission made and proceeded to observe:
Each son therefore inherited a definite share in the property. This would clearly distinguish it from a case of joint family property in respect of which it is impossible for a coparcener to say that he has a definite share. Therefore the reason underlying the rule that the individual interest of a co-parcener cannot be transferred does not exist in the case.
In this view of the matter, the question whether the property in the hands of the sons of Baijnath was or was not ''joint ancestral property' which was debated at length was of little importance and unnecessary. The observations made in that connection mast be taken to be obiter. The questions referred to us do not call for an expression of opinion on the other question whether the self-acquired property of a Hindu in the hands of the sons is or is not 'ancestral property' within the meaning of that expression as used in Hindu law. Nor are we called upon to examine the correctness of the dictum laid down at p. 224 in Baijnath v. Maharaj Bahadur A.I.R. (19) 1932 Oudh 158:
Thus in the Hindu law the term 'ancestral' in its technical sense can apply only to property belonging to the grandfather and his descendants in the male line.
The correctness of the other dictum found at p. 225 of the report:
To say that the sons held as joint tenants subject to the incident of survivorship is very different from saying that they held it as co-parcenary property without the right of alienating their share
must however be examined. This observation was made with reference to the decision of their Lordships of the Judicial Committee in Raja Chelikani Venkataramanayyamma Bahadur Garu v. Raja Chelikani Venkayyamma Garu 25 Mad. 678 P.C. I may point out that joint tenancy is an expression of English law. So far as I am aware, there is no analogous expression in Hindu law. It has often been employed by Judges in India and by the Judicial Committee to indicate some of the incidents of coparcenary property in a joint Hindu family. As pointed out in Jogeswar Narain Deo v. Ram Chund Dutt 23 I.A. 37 at p. 44 the principle of joint tenancy is unknown to Hindu law except in the case of coparcenary between the members of an undivided family. The distinction between joint tenancy as understood in the English law and the incidents of a coparcenary between the members of an undivided Hindu family must always be borne in mind. According to the English law of joint tenancy
a conveyance or an agreement to convey his or her personal interest by one of the joint tenants operates as a severance.
There are other incidents of joint tenancy in English law which are altogether foreign to Hindu jurisprudence. In a coparcenary among the members of an undivided Hindu family no coparcener has a right to alienate his share. The expressions 'coparcenary' and 'joint tenancy' as used in English law differ materially in their incidents when applied to express somewhat similar ideas in Hindu law. But whenever the expressions are used in relation to cases arising under the Hindu law they must be taken as used in the sense appropriate to that context and not in the sense in which they are applied-in English law.
39. Thus when Lord Lindley observed in. Chelikani Venkataramanayyamma Garu v. Raja Chelikani Venkayyamma Garu 29 I.A. 156 at p. 166 'members of a joint family who succeed to self-acquired property take it jointly', he could not possibly mean to suggest that such members take the property as joint tenants within the meaning of that expression as understood in English law. He must be taken to convey the idea that as they take it, it becomes joint family property of a Hindu coparcenary. To hold otherwise would be to introduce into Hindu law notions wholly foreign to it. I am not oblivious of the fact that in Mt. Lakhpati v. Parmeshwar Misra A.I.R. (18) 1931 Oudh 108 the same learned Judges who later decided the case of Baijnath v. Maharaj Bahadur A.I.R. (19) 1932 Oudh 158 held that on the death of a Hindu father his self-acquired property passes to his sons not by survivorship but according to the ordinary law of inheritance. It is significant to note, however, that in the same case they held that on the death of one of his sons his interest in such property would not devolve upon his widow but would go to his surviving brothers. When pressed with the view which they had taken in Lakhpati's case A.I.R. (18) 1931 Oudh 108 their Lordships explained it by drawing a distinction between property held in joint tenancy with a right of survivorship and property held as members of a Hindu coparcenary. It appears to me difficult to reconcile the decisions in these two cases : Lakhpati's case A.I.R. (18) 1931 Oudh 108 and Baijnath v. Maharaj Bahadur A.I.R. (19) 1932 Oudh 158 unless we introduce into Hindu law the notion of a joint tenancy as understood in English law an idea as already observed, wholly foreign to Hindu jurisprudence.
40. The difficulty which arose in those cases, I may venture to point out with the greatest respect for the learned Judges responsible for those decisions, was due to the mistaken assumption that the sons do not acquire an interest in their father's self-acquired property by birth. It is difficult to see how the learned Judges at p. 224 of the report in Baijnath v. Maharaj-Bahadur A.I.R. (19) 1932 Oudh 158 refer to the text of the Mitakshara property in the Paternal and grand paternal estate is by birth', and yet in the same paragraph hold that Munshi Baijnath'a 'sons had no interest in his self, acquired property by birth.' Whatever might be said about Colebrooke's mistranslation of the word in the above text, there is no dispute as to the meaning of the word 'Paitrike' 'paternal' i.e. of the father. Once it is established that the sons take an interest in their father's self-acquired property by birth, it must follow that on his death it devolves upon his sons by right of survivorship. It is unnecessary to determine the exact nature of the interest taken by the sons in their father's self-acquired property or lay down the limitations to which the interest taken by them is subject, for the purposes of this reference.
41. Mr. Dhaon in his arguments further relied on Saminadha Pillai v. Thangathanni 19 Mad. 70 Jamna Prasad v. Ram Partap 29 ALL. 667 and Vasudeo Ganesh Kulharni v. Vishwanath Shripad Kulkarni A.I.R. (35) 1948 Bom. 313. The actual decision either in Saminadha Pillai v. Thangathanni 19 Mad. 70 or Jamna Prasad v. Ram Partap 29 ALL. 667, does not conflict with the view taken by me. As regards Vasudeo v. Vishivanath A.I.R. (35) 1948 Bom. 313, it is sufficient to say that though there is an observation made in that case at p. 314 which is against the view taken by me the actual point that arose for decision by the Court was whether a separated son is entitled to a share in the self-acquired property left by the father at his death when there are in existence other sons who were joint with him.
42. I am for the reasons already given unable to accept the view that the sons of a Hindu father who form a joint family with him succeed on his death to his self-acquired property as joint tenants with a right of survivorship, but such property in their hands is not subject to other incidents of joint family property. There is in view of the observations of Lord Watson in Jogeswar Narain Deo v. Ram Chtmd Dutt 23 I.A. 37 at p. 44
that the principle of joint tenancy appears to be unknown to Hindu law except in the case of coparcenary between members of an undivided family.
and other authorities to which reference has been made, no room for the contrary opinion taken in Baijnath v. Maharaj Bahadur A.I.R. (19) 1932 Oudh 158.
43. The decision in Baijnath v. Maharaj Bahadur A.I.R. (19) 1932 Oudh 158 was followed in Mt. Sirtaji v. Upadhyay A.I.R. (23) 1936 Oudh 331 and in Ram Bharosey v. Ram Bahadur Singh A.I.R. (35) 1918 Oudh 125 but no fresh reasons for the view taken were given in those cases.
44. I will accordingly answer the first question referred to the Full Bench thus:
The self-acquired property of a Hindu father which his sons who were joint with him get on his death is in their hands joint family property. As between the sons and their descendants, it is subject to all the incidents of a coparcenary.
45. The second question referred to the Full Bench is impliedly covered by my answer to the first question. My reply to the second question is that in the case there contemplated the descendants of each son would vis a vis the other's eon or sons have the rights which a member of a joint family has in the coparcenary property.
46. I agree with the answer proposed to be given and have nothing to add.
47. The questions referred to the Full Bench are answered as above. The case may now be laid before the Bench which made the reference.