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Sitara Lal Vs. Shiv Kumar and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 1808 of 1983
Judge
Reported inAIR1986P& H112
ActsHindu Law
AppellantSitara Lal
RespondentShiv Kumar and ors.
Cases Referred(Satish Narain v. Deoki Nandan
Excerpt:
.....he is liable to make good to them their shares of all sums which he has misappropriated or which he has spent for purposes other than those in which the joint family was interested '4. the manager's liability to account on partition would arise only partition is permissible. these are further elaborated in para 238 as well, but to which reference instantly is not necessary......member of a joint mitakshara family cannot predicate at any given moment what his share in the joint family property is. his share becomes defined only when a partition takes place. as no member, while the family continues joint, is entitled to any definite share of the joint property, it follows that no member is entitled to any definite share of the income of the property. the whole income of the joint family property must be brought, according to the theory of an undivided family, to the common chest or purse, and there dealt with according to the modes of enjoyment by the members of an undivided family. (2a) joint possession and enjoyment:--each coparcener is entitled to joint possession and enjoyment of the family property. if any coparcener is excluded from joint possession or.....
Judgment:
ORDER

1. This petition for revision has arisen out of a family dispute.

2. Sitara Lal Petitioners is the father. An adult son of his by the name of Shiv Kumar, joining with him his two minor sons (grand-sons of Sitara Lal) filed a suit for partition of coparcenary property and rendition of accounts. Besides impleading his father Sitara Lal, he impleaded his other brothers also. Besides them, some other parties were impleaded. An application was moved in the trial Court by Sitara Lal claiming that in Punjab a son cannot sue the father for partition or claim any interest in the ancestral coparcenary property during his lifetime and thus the suit should be dismissed as not maintainable. The application was resisted. However, it was conceded before the trial Court that in Punjab, a son is not entitled to claim partition of coparcenary property against his father. The learned Sub-Judge Ist Class, Nabha, non-suited the plaintiff on this score at he preliminary stage but held that a suit for rendition of accounts of the income of the coparcenary property could not be thrown out. It is this view of the matter which is the subject-matter of challenge in this petition.

3. So far as the impediment to the son in Punjab in claiming partition is concerned, the matter is not respondent integra. Two Full Benches i.e. 1917 Punjab Records No. 105: (AIR 1918 Lahore 291) (Hari Kishen v. Chandu Lal) and (Satish Narain v. Deoki Nandan, AIR 1947 Lah 372) carefully discovered the principle that in Punjab a son is not entitled to ask for partition of the coparcenary property, the manager of which is the father, without the latter's consent. Those are based on the principles of Hindu Law as culled out in various treatises on the subject. However, with regard to the right of the son to have rendition of accounts of the income of the coparcenary property, no precedent of this Court has been brought to my notice by the learned counsel for the petitioners. The plaintiff-respondents despite being served have not put in appearance. In the situation, as at present advised, paras 235 and 237 of 'Mulla: Principles of Hindu Law', seem tome, to govern the issue unmistakably:

'235. Right of Coparceners:--(1) Community of interest and unity of possession:--No coparcener is entitled to any special interest in the coparcenary property, nor is he entitled to exclusive possession of any part of the property. As observed by their Lordships of the Privy Council, 'there is community of interest and unity of possession between all the members of the family'.

(2) Share of income:--A member of a joint Mitakshara family cannot predicate at any given moment what his share in the joint family property is. His share becomes defined only when a partition takes place. As no member, while the family continues joint, is entitled to any definite share of the joint property, it follows that no member is entitled to any definite share of the income of the property. The whole income of the joint family property must be brought, according to the theory of an undivided family, to the common chest or purse, and there dealt with according to the modes of enjoyment by the members of an undivided family.

(2a) Joint possession and enjoyment:--Each coparcener is entitled to joint possession and enjoyment of the family property. If any coparcener is excluded from joint possession or enjoyment, he is entitled to enforce his right by a suit. He is not bound to sue for partition.

... .... ... ...

237. Manager's power over income:--The manager, as the head of the family, has control over the income and expenditure, and he is the custodian of the surplus, if any. So long as he spends the income for the purposes of the family, he is not under the same obligation to economise or save as a paid agent or trustee would be. If he spends more than the other members approve, their remedy is to demand a partition. On the other hand, he is liable to make good to them their shares of all sums which he has misappropriated or which he has spent for purposes other than those in which the joint family was interested '.

4. The manager's liability to account on partition would arise only partition is permissible. But in Punjab, as it seems to me, when partition cannot be enforced against the manager father at the instance of his son, the father's liability to account at the pre-partition stage does not arise. The right of the members of the coparcenary against him are only confined to what is stated in paras 235 and 237, quoted above. These are further elaborated in para 238 as well, but to which reference instantly is not necessary.

5. For the law above quoted, as at present advised, I am of the view that the suit of the plaintiff-respondent for rendition of accounts too was not maintainable against his father. Accordingly, the plaint is rejected. The revision petition would stand accepted. No costs.

6. Petition allowed.


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