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Aher Hamir Duda Vs. Aher Duda Arjan and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtGujarat High Court
Decided On
Case NumberL.P.A. No. 60 of 1975
Judge
Reported inAIR1978Guj10; (1977)0GLR1032
ActsHindu Law
AppellantAher Hamir Duda
RespondentAher Duda Arjan and ors.
Appellant Advocate D.D. Vyas, Adv.
Respondent Advocate J.R.Nanavati, Adv.
Cases ReferredJaswantlal v. Nichhabhai
Excerpt:
.....son to claim partition of joint family property - son cannot claim partition unless severance of status by father from joint family or without permission of father. - - ' when the learned judges laid down that the descendants can at any time work out their rights by asking for partition, they were not considering the right of a son in a coparcenery to bring a partition action against the coparceners like uncles and grandfather in the state of gujarat which formed part of the erstwhile state of bombay. that right which he has, so far as the erstwhile presidency of bombay is concerned, cannot be exercised or enforced without the consent of the father, where the coparcenery consists of collaterals like uncles and others. in so affirming, the learned judges observed- having,..........and in fact he has been throughout contesting the right of his son, the appellant, to enforce his right for partition. mr. vyas invited our attention to the written statements to contend that both the father and uncle of the appellant had pleaded that the father of the appellant had separated from the rest of the family. that case was not accepted by the first appellate or the second appellate court. the specific case of the plaintiff throughout has been that he is a member of the undivided family and that he is entitled to ask for partition and separate possession of his share. findings of fact have been recorded by the district court and by the learned single judge that there was no severance of status and that the coparcenery remained intact. in other words, the learned single judge.....
Judgment:

S. Obul Reddi, C. J.

1. This Letters Patent Appeal by leave arises out of the judgment of the learned Single Judge dismissing the appeal preferred by the plaintiff against the judgment and decree of the District Judge reversing the judgment and Preliminary decree passed for partition by the Civil Judge (Junior Division) Kutiyana. The short question that arises for determination in this appeal this is whether the appellant (Plaintiff) is entitled to bring an action for partition without the assent of his father under the Mitakshara law applicable to this State when the coparcenary consists of a paternal uncle and others.

2. The facts necessary for determination of the question involved are the following. The appellant, his father and his uncle constitute a Hindu undivided joint family. The plaintiff filed the partition action averring that he is a member of the coparcenary and that he is entitled to a share in the coparcenarv properties. According to him the properties are all joint family properties and as such he is entitled to ask for partition of the properties by metes and bounds.

3. The action was resisted by the respondents, i.e., his father and uncle and another on the ground that the appellant's father had separated from the rest of the body during his father's time and the action as brought by the appellant to not maintainable.

4. The main issue before the trial Court was whether the 'Plaintiff was entitled to Partition of the suit properties. There was also an issue whether the first defendant, that is, the father of the plaintiff, was the exclusive owner of in Survey Number referred to in paragraph 7 01 the written statement.

5. The trial Court was of the view that there was no partition between the first defendant and his father and that the plaintiff was therefore entitled to 1/6th share in the joint family properties and an 1hat basis it passed the preliminary decree. That preliminary decree was assailed in the Court of the District Judge by the plaintiff's father. 7be appellate Court held that the evidence on record did not justify an inference that the first defendant had 'separated himself from his father about for' years prior to the suit as alleged by the plaintiff. In that view, following the decision of the Full Bench of the Bombay High Court in Apaji Narhar v. Ramchw2dra Ravji (1892) ILR 16 Bom 29 (FB) the lower appellant court allowed the appeal. The, plaintiff preferred a Second Appeal against the said judgment and decree and the learned Single Judge agreed with the findings recorded by the first appellate Court and dismissed the appeal and consequently the suit. He, however, granted leave and that is, how the Letters Patent Appeal is before us.

6. Mr. Vyas, learned counsel appearing for the appellant, strenuously contended that the decision of the Bombay High Court in Apajis case (1892) ILE 16 Bom. 29 (FB) is no longer Rood law in view of the decision of the Supreme Court in State Bank of India v. Ghamandi Ram : [1969]3SCR681 and, therefore, the plaintiff Is entitled to a preliminary decree in his favour for partition of the properties by metes and bounds. The question raised in Apaji's case was whether under the Hindu Law applicable to the Presidency of Bombay (the Satara District), a son can in the lifetime of his father sue his father and uncles for a partition of the ancestral family properties and for possession of his share therein, the father not assenting thereto. Justice Telang delivered a dissenting judgment whereas the other learned Judges Sir Charles Sargent, Kt., Chief Justice. Mr. Justice Bayley and Mr Justice Candy held that under the Hindu law applicable to the Presidency of Bombay which then comprised of this State also, a son cannot in the lifetime of his father sue his father and uncles for a partition of the ancestral immovable family property and for possession of his share without the father assenting thereto Mr. Vyas invited our attention to certain passages in the judgment of Justice Telang to contend that the view of Justice Telang is the view taken by all other High Courts in India and, therefore, the view of the majority in Apaji's case requires reconsideration. In the then Bombay State which comprised the present State of Gujarat, the law as laid down in Apaji's case is that without the assent of his father a son is not entitled to a partition if the father is joint with his own father, brothers, or other coparceners, though h6 may enforce a partition against the father if the father is separate from them.

7. The Supreme Court in State Bank of India v. Ghamandi Ram : [1969]3SCR681 (supra) was concerned with the case of a joint Hindu family having cash deposits in a Bank in Pakistan and the liability of the Bank in India in respect of the deposits. 'Me learned Judges there were not concerned with the rights of a son to enforce partition against the father -and other coparceners without the assent of the father. All that the Supreme Court said in that case is (at p. 1333)-

'The incidents of coparcenership under the Mitakshara law are: first, the lineal male descendants of a person up to the third generation, acquire on birth ownership in the ancestral properties of such person; secondly, that such descendants can at any time work out their rights by asking for partition; thirdly, that till partition, each member has got ownership extending over the entire Property, conjointly with the rest; fourthly, that as a result of such co-ownership the Possession and enjoyment of the properties is common; fifthly, that no alienation of the property is possible unless it be for necessity, without the concurrence of the coparceners, and sixthly, that the interest of a deceased member lapses on his death to the survivors.'

When the learned Judges laid down that the descendants can at any time work out their rights by asking for partition, they were not considering the right of a son in a coparcenery to bring a partition action against the coparceners like uncles and grandfather in the State of Gujarat which formed part of the erstwhile State of Bombay. Therefore, that decision does not either expressly or impliedly overrule Apaii's case (1892) ILR 16 Bom. 29 (FB). There was no reference to Apaji's case by the Supreme Court at all in that case.

8. The case of Sartaj Kuari v. Deoraj Kuari, (1888) ILR 10 All 272 (PC) also does not render any assistance to the case of the appellant here. There the Privy Council was considering the case with regard to an impartible estate and, therefore, it was held that 'in regard to impartible estate, the son's right at birth did not exist where there was no right on his part to partition; also that inalienability depended on custom or on the nature of the tenure. In this case the evidence did not establish that by custom the estate was inalienable.' In the course of discussion the Privy Council observed-

'The property in the Paternal or ancestral estate acquired by birth under the Mitakshara law is, in their Lordships' opinion, so connected with the right to a partition that it does not exist where there is no right to it.'

Again the emphasis in this decision also is as to the existence of a right.

9. The right of- the appellant, a coparcener, by birth to a share in the ancestral property is not in dispute. Every coparcener is entitled to a share on partition. His right to seek partition or to enforce partition As also not denied. What is put against him is only this. That right which he has, so far as the erstwhile Presidency of Bombay is concerned, cannot be exercised or enforced without the consent of the father, where the coparcenery consists of collaterals like uncles and others. He cannot ask for severance of status without the father giving assent thereto. Admittedly in this case the father of the appellant had not given his assent and in fact he has been throughout contesting the right of his son, the appellant, to enforce his right for partition. Mr. Vyas invited our attention to the written statements to contend that both the father and uncle of the appellant had pleaded that the father of the appellant had separated from the rest of the family. That case was not accepted by the first appellate or the second appellate Court. The specific case of the plaintiff throughout has been that he is a member of the undivided family and that he is entitled to ask for partition and separate possession of his share. Findings of fact have been recorded by the District Court and by the learned Single Judge that there was no severance of status and that the coparcenery remained intact. In other words, the learned Single Judge and the first appellate Court rejected the defence of the respondents that the father of the appellant had separated himself from his father about forty years ago. That finding of fact recorded by the first appellate Court and by the learned Single Judge of this Court cannot be disturbed by us.

10. Ever since the case of Durga Chowdhrani v. Jewahir Singh (1890) 17 Ind App 122 (PC), it has been consistently held by the High Courts, and by the Supreme Court that there is no jurisdiction to entertain a Second Appeal on the ground of erroneous finding of fact, however gross the error may seem to be. Therefore, we have to proceed on the basis that the coparcenery existed at the date when the plaintiff brought the action and that the plaintiff's father had never separated himself from his grandfather about forty years ago so as to make us hold that there was severance of status between the father of the appellant and other members of the coparcenery.

11. Apajis case (1892) ILR 16 Bom. 29 (FB) came to be considered by a Division Bench of this Court in Jaswantlal v. Nichhabhai, (1964) 5 Gu] LR 161 : (AIR 1964 Gui 283). That was a case where the plaintiff asked for partition of the joint family properties by metes and bounds on the ground that there was severance of status. The learned Judges, therefore, distinguished Apaji's case and held that where there was severance of status it would be open to a son where the coparcenery consists of his father, uncles and others, to ask for partition of the properties by metes and bounds without the father assenting thereto. The Supreme Court in Civil Appeal No. 403 of 1964 decided on August 23, 1965 affirmed that decision. In so affirming, the learned Judges observed-

'Having, therefore, regard to the statement of the plaintiff in all the paragraphs of the plaint and interpreting the plaint as a whole we are satisfied that the High Court was right in holding that the suit was not a suit brought for severance of joint family status but was a suit merely Supreme Court arises In this ewe. for partition by metes and bounds.'

12. Now in the present case what the plaintiff is asking is not only for severance of status but also for partition of the properties by metes and bounds In the above appeal the correctness of the decision of the Full Bench In Apaji's owe (1892) ILR 16 Bom. 29 (FB) was not challenged- The Supreme Court, however, made it clear that they 'were not expressing any opinion with regard to the correctness of that decision or its applicability to this case'. Therefore, it Is not necessary for the purpose of disposal of this Letters Patent Appeal that this Court should refer the matter to a larger bench to examine the correctness of the decision in Apaji's case. The Supreme Court has affirmed the view of this Court in Jaswantlal v. Nichhabhai (AIR 1964 Gui 283) (supra) that where there is severance of status it would be open to a son to ask for partition of the joint family properties by metes and bounds. In this case, as already pointed out by us, a categorical find- R. 2; 00 Sp ing of fact has been recorded that there was no severance of status as claimed by the father of the plain tiff. In fact it is the case of the plaintiff that there was no severance of status, The case of the plaintiff must either stand or fail on his own. He cannot now be permitted in this Court to approbate and reprobate by asking us to take into account what his father had said in his written statement. So far as that question whether his father had separated from his grandfather about forty years ago was concerned, there is a categorical finding of fact and that puts an end to the controversy as to whether there was severance of status or not.

13. The Letters Patent Appeal, therefore, fails and is accordingly dismissed. No costs.

14. Mr. Vyas made an oral application for leave to appeal to the Supreme Court under Art. 133(1) of the Constitution. We are unable to certify that this is a fit case for leave to appeal to the Supreme Court since no substantial question of law of general importance which, in our opinion, requires to be decided by the Supreme Court arises in this case. Oral application rejected.

15. Appeal dismissed


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