G.K. Misra, C.J.
1. One Sitaram Panda had three sons -- Kalia Kanhu (who died in 1952), Jagannath (who died in 1925) and Khetrabati (Plaintiff No- 1). Raghunath (defendant No. 1) is the son of Kalia Kanhu and Gelha (defendant No. 2) is the widow of Debraj, another son of Kalia Kanhu, who died in 1937. Jagannath's widow Subarni died in 1959. Hema (defendant No. 9), is the wife of plaintiff No. 1 and Radhakrishna (plaintiff No. 2) is the son of plaintiff No. 1. Plaintiffs' suit was one for partition of half interest in Schedules A, B and C properties of the plaint. While asking for partition they also challenged the validity of the sale deeds Ext. 2 dated 26-11-34 and Ext. J dated 20-1-36. Plaintiffs also asked for half share in the properties covered by Ext. H which were given to Subarni towards her maintenance and which defendant No. 1 alone appropriated. Items 14 and 16 to 22 of the B Schedule property were claimed to be the self-acquisition of defendant No. 1 purchased by him on 6-5-1940 for which no document has been filed and on 30-9-1956 by Ext. 6. Plaintiffs claim half share in these properties also.
The defence case was that there was a partition by metes and bounds near about the year 1927. The acquisitions made by defendant No. 1 under Exts. J, H and 6 are valid and defendant No. 1 alone is exclusively entitled thereto. The properties referred to in Items 14 and 16 to 22 of the B Schedule of the plaint were acquired by defendant No. 1 on 6-5-1940 and 30-9-1956 and are his self-acquisitions and are not partible.
The trial court found that there was a partition by metes and bounds in 1927 and that the suit for partition must fail. He, however, granted a decree for partition in respect of the properties covered by Ext. H as those properties were allotted to Sabarni towards her maintenance and on her death in 1959 both the plaintiffs and the defendants were entitled to divide the same. The trial court also found that defendant No. 1 would be entitled to the entire share of defendant No. 2 and he has acquired a title by adverse possession.
Against the finding in respect of the properties covered by Ext. H, the defendants did not file any appeal or cross-objection in the High Court. The decision of the trial court is accordingly concluded so far as Ext. H is concerned. In other words, the subject-matter of Ext. H is liable to partition between the plaintiffs and the defendants.
Being aggrieved by the judgment of the trial court, the plaintiffs carried an appeal to the High Court. The First Appeal was ultimately heard by our learned brother Justice B. K. Ray. He recorded the following findings:--
(1) There was no, partition by metes and bounds near about 1927;
(2) There was severance of Joint status amongst the parties 20 to 30 years prior to the filing of the suit in 1962;
(3) Defendant No. 1 is net entitled to claim Items 14 and 16 to 22 of the B Schedule property as his self-acquisition:
(4) Transfer by plaintiff No. 1 in favour of defendant No. 9 under Ext. 2 dated 26-11-1934 did not convey a valid title and consequently the father of defendant No. 1 did not acquire a valid title in respect of the same property under Ext. J dated 20-1-1936;
(5) The property that fell to the share of defendants would be divided amongst them equally.
2. The findings of the learned single Judge that there was no partition by metes and bounds near about 1927 and that there was severance of joint status amongst the parties 20 to 30 years prior to the suit were assailed before us in a somewhat luke-warm manner. After having gone through the evidence and having carefully heard the learned Advocates we are satisfied that those findings are unassailable and they are accordingly confirmed.
3. It has already been stated that the finding of the trial court that the properties covered by Ext. H are partible was not challenged in the High Court by the defendants either by way of appeal or cross-objection, That finding accordingly has become concluded.
4. The only points for consideration in this appeal are:--
(1) Whether plaintiff No. 1 conveyed a valid title in favour of defendant No. 9 by Ext 2 dated 26-11-1934 ?
(2) Whether the properties covered by Items 14 and 16 to 22 of the plaint B Schedule are the self-acquisitions of defendant No. 1 ?
(3) Whether defendant No. 1 has acquired a valid title to the properties to which defendant No. 2 is entitled by adverse possession.
5. On the last point the learned single Judge held against defendant No. 1 and in our opinion rightly. This is not a suit in which the inter se right, title and interest of defendants 1 and 2 were litigated. The suit was filed by the plaintiffs for partition. Defendant No. 1 did not even take up the plea that he has acquired a title by adverse possession to the properties of defendant No. 2. We accordingly confirm the finding of the learned single Judge on this point.
6. The learned single Judge held that Items 14 and 16 to 22 of the B Schedule property are not the self-acquisitions of defendant No. 1 as there was sufficient nucleus in the family from out of which these properties could be acquired. This conclusion is directly contrary to his earlier finding that there was severance of joint status in the family 20 to 30 years prior to the suit. After severance of joint status is made, the erstwhile coparcener ceased to be a member of the coparcenary. The doctrine of nucleus has application only when there is existence of a coparcenary. Any acquisition subsequent to the severance of joint status is the self-acquisition of the person who acquires the property. This aspect of the matter was unfortunately overlooked. The learned single Judge's finding must accordingly be reversed. We hold that Items 14 and 16 to 22 of the B Schedule property are the self-acquisitions of defendant No. 1.
7. The learned single Judge found that the alienation by plaintiff No. 1 in favour of defendant No. 9 by Ext. 2 dated 26-11-1934 is invalid as by then there was existence of a coparcenary and one of the coparceners cannot alienate his undivided interest without the consent of the remaining coparceners. This conclusion is fallacious. It is untenable in its application to the Madras school of Hindu law where a coparcener can alienate his undivided interest without the consent of the other coparceners. It is unnecessary to refer to any authority (See paragraph 259 of Mulla's Hindu Law). The legal position is sufficient to dislodge the finding. It is unfortunate that the learned advocates for the parties did not bring this aspect of law to the notice of the learned single Judge. Plaintiff No. 1 was therefore entitled to transfer his undivided interest in favour of defendant No. 9. Ext. 2 is valid. The validity of Ext. J was not challenged on any other ground excepting on the basis that Ext. 2 did not convey a valid title. Defendant No. 1 has therefore a valid title to the property under Ext. J.
8. We sum up our conclusions thus:--
(1) There was no partition by metes and bounds near about 1927 as pleaded by defendant No. 1;
(2) There was a severance of joint status about 20 to 30 years prior to the suit;
(3) The properties covered by Ext. H are partible;
(4) The properties covered by Ext. J are the self-acquisition of defendant No. 1;
(5) Items 14 and 16 to 22 of the plaint B Schedule property are the self-acquisitions of defendant No. 1.
9. On the aforesaid conclusions the suit for partition must succeed subject to our observations in respect of different classes of properties over which there was dispute. Any alienation made by the parties would be adjusted towards their share. If there was unequal land falling to the respective shares, it is open to the parties to ask for accounts in the final decree stage.
10. In the result, the judgment of the learned single Judge is set aside in part and appeal is allowed in part. The preliminary decree for partition be modified accordingly. In the circumstances, parties would bear their own costs throughout.
11. I agree.