1. This is an appeal filed by the appellant-plaintiff front a Judgment and order of the Joint Civil Judge (Senior Division), Surat, dimissing a suit being Civil Suit No. 5 of 1957 filed by him in the Court of the Civil Judge (Senior Division), at Surat.
2. To appreciate the points arising for determination in this appeal it is necessary to state a few facts, The suit related to the properties of the family of one Vallabhabhai Khandubhai. Vallabhbhai Khandubhai had three sons and several grand children and great grand children. At oriel time this family was a joint and undivided Hindu Family. This family acquired diverse movable and immovable' properties and ventured upon several businesses in several commodities. The plaintiff is one of the great grand children of Vallabhbhai Khandubhai. On January 22, 1957, the plaintiff filed the abovementioned suit against his grand-father, his father, his uncles, his grand-uncles, cousins and others. At present we will merely describe this suit as a suit for a partition of the properties belonging to the family because the nature of the suit is in dispute between the parties, the dispute being that, on the one hand it is contended by the plaintiff that this is a suit for partition of the family properties by metes and bounds only whereas, on the other hand, it is contended by the contesting defendant? that this is both for severance of status and a partition by metes and bounds of the movable and immovable properties belonging to this family.
3. After the filing of the suit a number of written statements were filed. One of the contentions raised In the written statements was that It being an undisputed position that the parties are governed by the Mayukha sub-school of Mitakshara school of Hindu Law and this being a suit for partition and the plaintiff having not obtained the consent of his father for filing this suit, this suit was liable to be dismssed in limine as it was not maintainable. On December 4, 1958, defendant No. 1 made an application to the Court referring to this defence raised in the written statement and he submitted that a preliminary issue should be raised as set out in the application. The issue suggested by defendant No. 1 was, 'Whether the plaintiff has a right to sue for general partition against his grand-father and others in the life time of his father?' The learned advocate for the plaintiff made an endorsement on this application to the effect that he had no objection to the raising of a preliminary Issue but that the form in which It was raised Was not proper. He suggested that the words 'in the lifetime of his father' should be deleted from the issue. On this application, the learned Judge made an order on the same day raising the following preliminary issue:-
'Whether the plaintiff has a right to sue for general partition against his grand-father and others on what is alleged in the plaint?'
4. On July 28, 1959, the plaintiff made an application for an amendment to the plaint. He stated in this application that through oversight on account of some printing error in paragraph 3 lines 2-3 of the plaint the words ^^vuk f vs** that is 'and are' had been Incorporated. He submitted that the suit was for partition of the properties of the family which family was already separated. Accordingly he prayed that these words should be deleted from paragraph 3 lines 2-3 of the .plaint. This application was opposed by defendants 1. 4, 24, 25 and 26 who submitted that the application was not bona fide and that the amendment would change ttte nature of the suit. Some of the other defendants followed suit in opposing this application. On August 22, 1959, this application for amendment came on for hearing. At the hearing af this application, the parties came to an understanding that this application should be heard along with the preliminary issue. The learned advocates appearing for the parties accordingly put in an application to this effect and the same was recorded by the learned trial Judge. In effect, this application was directed to be heard with the hearing of the preliminary issue. This application and preliminary issue came on for hearing before the learned Judge in December 1960 and after hearing the parties the learned Judge disallowed the application for amendment and passed an order dismissing the suit. Being aggrieved by this judgment and order, 'the plaintiff has preferred this appeal to this Court.
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13. that takes us to the main point on which the suit Has dismissed. This suit was dismissed following the judgment in Apaji Narhar v. Ramchandra Ravjl, ILR 16 Bom 29 (FB). A Full Bench of the Bombay Higb Court consisting of Sir Charles Sargent, C. J. and Justices Bayley, Telang and Candy (Telang J. dissenting) there held that under Hindu Law applicable to the Satara District (in the then Presidency of Bombay) a son could not in the life-time of his father sue his father and uncles for a partition of the immovable family property and for possession of his share therein, the father not assenting thereto, it is common ground before us that there was no assent of the father of the plaintiff on record given before the institution of this suit. Mr. Patel's contention was that following Apaji's case, ILR 16 Bom 29 (FB) this suit was rightly dismissed. The learned Judge Interpreted the plaint in this suit as a suit not for partition of tee immovable properties by metes and bounds simpliciter but as a suit for severance of the joint family. He held that it was a suit for general partition of the joint family property and accordingly Apaji's case, ILR 16 Bom 29(FB) directly applied. He accordingly held that there being no assent given by the father the plaintiff, in the absence of such assent, was not entitled to sue his father and the others during the life-time of his father when his father was joint with his own father and brothers, in the view that he took of the matter of the interpretation of the plaint, he felt himself bound by the judgment in Apaji's case ILR 16 Bom 29 (F8) and accordingly dismissed the suit In our view, the suit not being a suit for general partition, that is, a suit for the severance of the joint family status and for possession, the ratio decidendi in Apaji's case, ILR 16 Bom 29 (FB), could not and does not apply and the suit is maintainable.
14. But then Mr. Patel contended that assuming that the present suit Is a suit for partition by metes and bounds simpliciter and is not a suit for severance) of the joint family status, even in that case the son could not sue for a partition by metes and bounds of the properties of the joint family when his father himself is joined with his own father and uncles. He submitted that if a son could not maintain the suit for severance and possession against the father and the grandfather without the assent of the father then the logical corrollary to that proposition was that the son could not ask for partition by metes and bounds. He conceded that there was no direct authority on the point but for this proposition he strongly relied on Apaji's case, ILR 16 Bom 29 (FB) and certain observations In a judgment of the Privy Council reported In Rai Bishen Chand v. M. Asmaida Koer, LR 11 Ind App 164 (PC), to which we shall presently turn.
15. There is no doubt that the Full Bench decision of the Bombay High Court in Apaji's case, ILR 18 Bom 29 (FB) is binding on us. The question that arises for determination is that, in deciding Apaji's case, ILR 16 Bom 29 (FB) did the learned Judges also decide the question regarding the maintainability of a suit for partition by metes and bounds by a son without the assent of his father? In Apaji's case, ILR 16 Bom 29 FB) the suit was by a son against his father and uncial, defendants Nos. 1 and 3 being uncles and defendant No. 2 being the father of the plaintiff. The plaintiff alleged that he and the defendants were members of an undivided Hindu family and he claimed partition of the family property and possession of his share. He alleged that his father Defendant No. 2) was a man of weak intellect and that his uncles (defendants Nos. 1 and 3) ill-treated the plaintiff and had turned him out of the family house. The uncles (defendants Nos. 1 and 3) filed a written statement contending that the plaintiffs father had relinquished his rights In the ancestral properties in their favour by a release in the year 1863 and that, therefore, the plaintiff had no claim to a share. The learned subordinate Judge passed a decree for the plaintiff which was confirmed by the District Court. The matter came up in appeal before a Division Bench of the Bombay High Court and the Court referred the following question for determination to a Full Bench :-
'Under Hindu law applicable to this Presidency, (the Satara District in this case), can a son in the lifetimes of his father sue his father and uncles for a partition of the Immovable ancestral family property and for possession of his share therein, the father not assenting thereto?'
The matter came up before the Full Bench consisting of the above mentioned Judges. Sargent C. J. and Bayley and Candy JJ. answered this question in the negative. In the course of the judgment the learned justice relied on certain original Sanskrit texts and in their view, on a correct interpretation of these texts, a son had no general right of partition without the assent of his father. Telang J, delivered a dissenting judgment from the majority view and also considering the various texts In the Mitakshara and other texts. It may be mentioned in passing that the lone dissenting voice of Telang J. in Apaji's case, ILR 16 Bom 29 (FB), found an echo in the Judgments of various other High Courts in this country, but as far as the High Court of Bombay was concerned, the view taken by the majority of the Full Bench in Apaji's case, ILR 16 Bom 29 (FB), held the field and was followed In subsequent cases. The law, therefore, laid down by the majority in Apaji's case, ILR 16 Bom 29 (FB) is the law which is binding on us. We will, therefore, proceed to find out what is precisely laid down by Sargent c, J. and Baley and Candy, JJ., in Apaji's case, ILR 16 Bom 29 (FB).
16. In the first place, it is pertinent to note that the suit in Apaji's case, ILR 16 Bom 29 (FB), was on so allegation that the defendants and the plaintiff were members of an undivided Hindu family and the claim was for the partition of the family and the possession of his share, iN other words what was claimed in the suit was mainly a severance of the joint family status and Incidentally the plaintiff claimed possession of his share. This is also brought out in the question referred to the Full Bench. The question related to a suit 'for, partition of immovable ancestral family property and for possession of his share. Bearing in mind that the suit was on the allegation that the family was an undivided Hindu Family, It Is clear that the whole question proceeded on the footing of there being a joint and undivided Hindu family of which severance was sought. It is in this background that the- question was considered fey the majority In Apaji's case, ILR 16 Bom 25 (FB) and Ibis is further brought out by a number of passages : these three judgments. At page 33 observed Sargent C.J.,
'The question new raised by the present reference is whether such right of the son to partition also exist; Where the ancestral property is held in coparcenary by the father in union with his brothers and nephews.'
At page 35 he said,
'It is said, indeed, that the right of the son to partition in the case where the father Is not divided from his coparceners follows from the text of Yajnavalkya that the ownership of the father and sort in property acquired from the grandfather is the same' and (hat the case of property descended in one branch is not to be regarded as an exceptional case.'
At page 36 he stated that for the reasons given by him he was of the view that the proper construction to be placed on the relevant placita in the texts was that no necessary inference can be drawn in favour of the general right of the son to partition, and the circumstance that neither the feeling nor practice of the Hindu community has Interpreted the doctrine of the Mitakshara in the large sense, afforded a strong reason why it should not be held that the son's Independent right of partition extended beyond what was laid down in the texts. On the other hand, Candy, J. referred to the son's right as an Indefinite right in the joint property. After considering the various texts he observed, 'It is evident then that the general rule enunciated in verses 5 and 8 relates back to the foundation of the rule given in verse 3; and thus it appears that the right of a son to compel his father to divide ancestral estate is confined to the case of an undivided family consisting of a father and his sons, it presupposes the grandfather to be dead (for the partition is of effects inherited from him), and the father to have no brothers with whom he is in union.' At page 70 Candy, J. emphasises the unascertained nature of the share in the entire property. Al page 75 he says that the vested interest which every member of the joint family acquires by birth is In the whole property, and adds that the quality of ownership, which is the principal foundation of the right of a son to demand partition, is that of a father and son. At page 76 he stresses the aspect of the father being unseparated from his own collaterals. All these passages leave not the slightest doubt in our minds that what the learned Judges in Apaji's case, ILR 16 Bom 29 (FB), were considering was, a case of general partition, the case of the severance of 3 joint family, the case on the footing of the existence of the joint and undivided Hindu family and not a casa for 4 partition by metes and bounds. When the question which Is referred to the Full Bench refers to the partition and 'for possession of his share', what is contemplated is not possession of the share on a suit for partition By metes and bounds.' It is the incidental relief to the relief sought for partition by severance of the joint and undivided Hindu family. It appears to us to be clear that this case does not extend to the case of a partition by metes and bounds and does not lay down that any assent would be necessary for such a suit.
17. A Single Judge of the Bombay High Court followed the decision in Apaji's case, ILR 16 Bom 29 (FB), but, it appears to us, with some reluctance. That was in the case of Jivabhai Vadilal v. Vadilal Sakarchand, 7 Bom LR 232, where Badruddin Tyabji, J. held that under the Mayukha, a son could not in the life-lime of his father, sue his father and uncle for partition of the ancestral family property and for the possession of his share therein, the father not assenting thereto. There the allegation was that the joint family continued right till the date of the suit. In the course of the judgment, Tyabji, J. observed that the ruling of ILR 16 Bom 29 (FB), was weakened by the dissent of Telang, J. and that it was further weakened by a different view taken by the High Courts of Allahabad, Madras and Calcutta, and then he stated,
'But although it is unfortunate that all the other High Courts have taken a different view from that taken by the Bombay High Court, and although it is a remarkable fact that every Hindu Judge has also taken a different view from that taken by the majority of the Full Bench in Bombay, still it seems to me that sitting alone, as I am here, I must consider myself as concluded by the Bombay Full Bench decision.'
With respect, even sitting as a Division Bench of this Court, we shsre the feeling then experienced by Tyabji, J.
18. It was then argued that if we did not read Apaji's case, ILR 16 Bom 29 (FB) as covering the suit for partition by metes and bounds, the logical corollary from Apaji's case would be that there was no reason why the principle laid down therein as affecting suits for severance should not be applied to suits for partition by metes and bounds. For this submission Mr. Fatal strongly relied on an observation in a judgment of the Privy Council reported in 11 Ind App 164 (PC). The observation which Mr. Patel relied on was,
'It cannot be strictly a partition, for, according ip the Milakshara (cap. i., sect, 5, verse 3), there can be no partition directly between grandfather and grandson while the father is alive.'
In Mr. Patel's submission, this observation clearly laid down that a suit for partition between a grandson and a grandfather would not be maintainable during the lifetime of the father, and extending the principle in Apaji's case, ILR 16 Bom 29 (F8), He submitted that it could be only maintained with the assent of the father. Now, in the first place, we do not read this observation in the light in which Mr. 'Patel wants us to read it. This observation is merely an observation purporting to set out the text contained in the Mitakshara, cap. i. sect. 5, verse 3. It does not at all lay down that a suit for partition by a son would not lie against the grandfather and the collaterals of the father during the lifetime of the father without the assent of the father. It deals with another aspect of the matter altogether. Their Lordships in that case were dealing with a particular document executed by the grandfather in favour of the grandson and were considering the nature of that document. In considering the nature of that document, they observed that that document could not be said to be a document of partition in view of the abovementioned text contained in Mitakshara. This is far from laying down any principle that there cannot be any suit for partition by a grandson against his grandfather and his father's collaterals during the father's lifetime without the assent of the father. Surely, the Privy Council could not have been laying down what is submitted by Mr. Patel having regard to a later pronouncement of the Privy Council in Sarta) Kuari v. Deoraj Kuari, ILR 10 All 272 at p. 287 (PC), where they say that
'The properly 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.'
If Mr. Patel's interpretation of the observation in Ral Bishan's case, 11 Ind App 164 (PC) were correct, the question of any right of partition by a son would not arise at all.
19. Then again in Anandrao Ganpatrao v. Vasantrao Madhorao, 9 Bom LR 595 (PC), the Privy Council observed that a son took a right in the joint family estate Independent of a father.
20. Assuming, however, that this observation does lay down what Mr. Patel contends for, even then we have to examine the nature and the binding effect of this observation. As we have pointed out, in Rai Bishan Chand's case, 11 Ind App 164 (PC), their Lordships of the Privy Council were dealing with a suit filed by a creditor of the father alleging that a gift-deed made by the grand father in favour of the grandson was invalid and it did not affect the rights of the father In the property. Mainly they were concerned with the interpretation of the gift-deed and they dealt with various grounds of attack by the creditors against this deed of gift made in favour of the grandson. Ultimately they came to consider the nature of this deed of gift and they said that they considered that it was not necessary to view the transaction as though it was to be determined by the rules of English Construction. They further said that the High Court had viewed this transaction in the light of a partition and it was in this reference that they said that it could not strictly be a partition for, according to the Mitakshara texts, there could be no partition directly between grandfather and grandson while the father was alive. Now undoubtedly this is an observation of the Privy Council but in our view, made in passing. In Apaji's case, ILR 16 Bom 29 (FB), Sargent C. J. viewed this observation in the following words:
'The above statement of the law was, howevernot necessary for the decision of the case, and althoughof course entitled to the greatest respect cannot beregarded as more than the expression of opinion of thePrivy Council as to the proper meaning of the verse.This is important; since, if the view taken by the Privy Council were binding on this Court, it would be conclusive against the right of the son as claimed in the present case.'
In other words, Sargent, C. J. treated this observation as a passing observation. .
21. Now, in Mohandas Issardas v. A. N. Sattanathan, 56 Bom LR 1156 : ( (S) AIR 1955 Bom 113), the distinction between the different pronouncement and expressions of the opinion of Courts has been brought out. Itis stated
'An obiter dictum is an expression of opinion on a point which is not necessary for the decision of a case. This very, definition draws a clear distinction between, a point which is necessary for the determination of a case, and a point which is not necessary for the determination of the case. But in both cases points must arise for the determination of the tribunal. Two questions may arise before a Court for its determination. The Court may determine both although only one of them may be necessary for the ultimate decision of the case The question which was necessary for the determination of the case would be the 'ratio decidendi'; the opinion of the tribunal on the question which was not necessary to decide the case would be only an 'obiter dictum' . . . ..... it would be incorrect to say that every opinion of the Supreme Court would be binding 'upon the High Courts in India. The only opinion which would be binding would he an opinion expressed on a question that arose for the determination of the Supreme Court, and even though ultimately it might be found that the particular question was not necessary, for the decision of the case, even so, if an opinion was expressed by the Supreme Court on that question, then the opinion would be binding upon us.'
In our opinion, the aforesaid observations in the Privy Council case do not either amount to the 'ratio decidendi' in the case or even 'obiter dicta'. They, are merely passing observations made by the Privy Council after having dealt with the main question arising for determination before them.
22. Assuming for the sake of argument, however, that these observations amounted to obiter dictum of the Privy Council, then ordinarily we should' have thought ourselves bound by these obiter dictum. As pointed out by Chagla, C. J. In Mohandas's case, 56 Born LR 1155 : ( (S> AIR 1955 Bom 113) :
'The very reason why the Courts in India agreed to be bound by the obiter dicta of the Privy Council was that the highest judicial authority in the Empire had applied its mind to a question of law which arose before it for its determination; and however unnecessary it was for it to decide that question, having expressed an opinion on that point it became an authoritative pronouncement on that question of law, and the Privy Council, by deciding that question, of law, set its seal of approval upon that question of law. It cannot be suggested that the doctrine of obiter dicta was so far extended as to make the Courts bound by any and every expression of opinion either of the Privy Council or of the Supreme^ Court, whether the question, did or did not arise for the determination of the higher judicial authority.'
This clearly indicates that ordinarily obiter dicta of the Privy Council would be followed by the Courts in India. But in a later Full Bench case the Bombay High Court held that
'what is binding is not merely the point actually decided but an opinion expressed by the Privy Council which opinion is expressed after careful consideration of all the arguments and which is deliberately and advisedly given'.
The opinion given in Raj Bishen Chand's case, 11 Ind App 164 (PC), can hardly be said to be an opinion given after careful consideration of all the arguments or an opinion which is deliberately and advisedly given. In the first instance, when we turn to the arguments reported in the Indian Appeals Series as also the arguments reported of the same case in 6 All 560 (PC), we do not find any argument regarding the maintainability of a suit by a son against his grandfather and his father's collaterals during the lifetime of the father without his assent being reflected therein. As a matter of fact, we do not even find a reference to the placitum nor do we find any reference to any partition directly between grandfather and grandson while the father is alive. We also fail to find any reference to the verse 3, section 5 Chapter 1, of the Mitakshara on the basis of which this observation is made. That being so, it can hardly be said that this expression of opinion has been made after a careful consideration of all the arguments advanced because we do not find any arguments having been advanced at all on this question before their Lordships of the Privy Council. Then again, our attention was drawn that the purport of this placitum contained in verse 3 Is not correctly set out and a translation of this verse 3 contained in Setlur's translation of the Hindu Law Books was brought to our notice. Setlur translated this verse as follows:
'If the father be alive and separate from the grandfather, or if he have no brothers, a partition of the grand father's estate with the grandson would not take place since it has been directed that shares shall be allotted in right of the father, if he be deceased; or, admitting partition to take place, it would be made according to the pleasure of the father, like a distribution of his own acquisitions:'
This clearly brings out that even the purport of the text as set out by their Lordships cannot be said to be correct. It also next appears to us that what their Lordships were doing was only setting out the purport of the text and using it as an argument in interpreting the document before them. It cannot be said that this opinion was deliberately or advisedly given. Even if amounted to an obiter dictum it was an opinion which was expressed by the Privy Council without careful consideration. It cannot be said that this was an opinion expressed after careful consideration of all the arguments and which opinion was deliberately and advisedly given In these circumstances, even if we were to hold that these observations amounted to obiter dictum it can note be said that in the present case this obiter dictum of their Lordships of the judicial Committee of the Privy, Council should be binding on us.
23. Mr. Patel did refer as to a number of other cases dealing with the effect of the obiter dicta of the Supreme Court and with the greatest respect we agree with what is laid down in those cases. Those cases, however, do not help us in regard to the observations of Privy Council in Rai Bishen Chand's case, 11 Ind App, 164 (PC). The case which helps us is the case reported in State of Bombay v. Chhaganlal Gangaram Laver, 55. Bom LR 1084 : (AIR 1955 Bom 1) (FB), which has clearly indicated the extent to which and the circumstances in which the obiter dicta of the Judicial Committee of the Privy Council and the Supreme Court should be followed it is thus unnecessary for us to go into those other cases cited by Mr. Patel.
24. Then Mr. Patel tried to reinforce this very argument in regard to the extension of the principle in Apaji's case, ILR 16 Born 29 (FB), in a different way. He stated that apart from authority, the suits which were, according to him, loosely characterised as suits for partition were suits for division of property. His argument turned this way : A severance was merely an expression of intention to over and that being so, the principle in Apaji's case should be extended because whether it: is a suit for severance or whether it is a suit for partition by metes and bounds, the question relates to the division of ancestral property. In the first place, having regard to the consensus of opinion between the Courts other than the Bombay High Court on what is laid down in Apaji's case, ILR 16 Bom 29 (FB), we do not think that the principle laid down in Apaji's case, ILR 16 Born 29 (F8), should be extended to a suit for partition by metes and bounds - simpliciter. For a long time since Apaji's case, ILR 16 Bom 29 (FB), all the other High Courts have taken a different view on the subject. There is a strong and a learned judgment of-dissent delivered by Telang, J. in Apaji's case, ILR 16-Bom 29 (FB), itself. In these circumstances, we do not think that we should accede to Mr. Patel's argument that the principle in Apaji's case, ILR 16 Bom 29 (FB), should be extended. Second, the real reason why an assent was thought necessary in a suit for severance of status was. that the son should not be allowed to disturb the whole family status. When the father is joint with his own father and his collaterals it was thought that It would be undesirable to allow the son to disturb the whole family by effecting a severance thereof without the as sent of his father. This is also reflected in the judgment of Sargent, C. J. at page 36 where he says,
'indeed it is plain that If the son could assert such right against the will of his father, the segregation might lead to grave practical difficulties.'
It was the father himself who obstructed the channel. If the father assents to a severance that obstruction is removed. On the other hand 'if the father or anybody else has already severed the joint family status, then in that event also the obstruction would be removed. Once a family is severed and thus there has already been disruption, a suit for partition, by metes and bounds simpliciter is only a mode of carrying out this severance. The severance is carried out by distribution of the properties by metes and bounds and by assuring to each one of the members entitled to a share, his share in the joint family properties. That appears to us to be the reason why an assent was thought necessary in the case of a suit for partition by severance in joint family status in Apaji'scase, ILR 16 Bom 29 (FB). That reasoning does not apply to a suit for partition by metes end bounds simpliciter. We do not think, therefore, that the submission that an assent should be necessary in a case for a suit for partition of joint family property by metes and bounds simpliciter is tenable.