Ramaprasada Rao, C.J.
1. As against a common judgment rendered by the Subordinate Judge, Tiruchirapalli, in 0. S. No. 124 of 194 and 0. S. No. 161 of 1965, the above appeals arise. The plaintiffs in 0. S. 124 of 1964 are the appellants in A. S. 141 of 1972 and the same three plaintiffs as above, who are defendants 4 to 6 in 0. S. 161 of 1965 are the appellants in A.S. 142 of 1972. Both the suits are laid as suits for partition. We shall consider the relative claims of parties in the course of our judgment. In the court below evidence was recorded in 0. S. 124 of 1964. The first plaintiff in 0.S 124 of 1964 who is the 4th defendant in O.S. No. 161 of 1965, examined himself as P.W. 1. The first defendant in O.S. 124 of 1964, who is also the first defendant in O.S. No. 161 of 1965, examined himself as D.W. 1 and the plaintiff, 8th defendant, 13th defendant, 17th defendant and 18th defendant in O.S. 161of 1965 have examined themselves as DWs. .2, 3, 4, 5 and 6 respectively. We shall maintain in these appeals such references to parties for purposes of convenience. The genealogical tree showing the relationship of the parties are set out hereunder for ready reference. The description of the parties is as set out in O.S. 161 of 1965.
PENNAN- I died (1884)__________________________________________________________________________________________| | |Pennan Ambalaka I vm (died 1900) Chinna A mbalakaran Vellain AmbalkaranPennan-II|___________________________ _____________________________________| | | | | |Pennan-III Vellian Anaikutti Onthan Nattaiyan NallanSub- Chinnayya Pennan Vellian Onthan ban D. 18Muthirian R. 10 R. 11 R. 14-died.Ambalagaran Ponnan P.A.Periasami D. 13 D. 14(died 15-02-1954) Muthuriar R.5 D. 8 Chinna- Pathi- Amir- Ay-R.Plaintiff P.A.Ganapathi to sami nam tham yer R.6 D. 11 R. 19 R. 20 R.16P.A.rajarathinam D. 12; R. 9R.7 diedP.A.Rathinasab-apathiR.8P.Pariathambi--R.2 Cross- Kannamiah Rathinam Pennun AnaiP.natean --R.3 Appeallants R. 17 R. 18 (died) Kutti P.Annasami --R.4 D. 15 R. 12D. 16P.Periasami D. 1 P.Onthan Appellants to Pennan P.Thopalan D. 6 died R. 13 D.7 is the mother D. 17 D 4,D 5,D 6.Pari- Thama- Anai- Ponnu- Kana- Than-Sami rai w/o kutti sami gammal gam- al.
The common ancestor was one Pinnan Muthirian hereinafter referred to as Pennan-l. He had three sons Pennan Ambalakaran, who died in the year 1906, hereinafter referred to Pennan II and Chinnan Ambalakaran and - Vellian Ambalakaran. Pennan Il in turn had three sons, the first son called Ponnan Muthirian Ambalakaran hereinafter referred to as Pennan III, the'second son Vellian and the third son Anaikutti. Pennan III married twice. Through his first wife, Nallangal he had defendants 1, 2 and 3 and through his second wife Perikkal, who was originally the 7th defendant in the suit, and who died pending suit, he had defendants 4, 5, 6, who in turn are the plaintiffs in O.S. 124 of 1964. Vellian had one son, who is the plaintiff. Anaikutti had four sons, who are defendants 87 9, 10 and 11. The description of the above parties exhausts the line of Pennan-11, We now come to Chinnan Ambalakaran, the second son of Ponnan I. He had 4 sons. The only surviving members in this branch are defendant 12, who also died, in the course of the suit, defendant 13, defendant 14, defendant 15, who - died pending suit and defendant 16. Vellian Ambalakaran, the third son of Pannan I left behind defendants 17 and 18. This defendant 17 died during the pendency of the appeals and his lekaj,_ representatives have been brought on record. Even so defendant 18 died during the pendency of the appeals and his legal representatives have also been brought on record in these appeals. There is no showing in the record as to what were the properties left by Pennan I. In the schedule to the plaint in O.S. 161 of 1965, which is the main suit, the properties left by Ponnan II at the time of his death in June 1906 and the properties acquired in the name of PennanII from the years 1906-1951 are the subjectmatter of this and the other suit O.S. 124 of 1964. The properties which were left by Pannan 11 are all detailed in Schedules Al, BI C1, DI and El appended to the plaint in O.S. 124 of 1964. The properties which were acquired in the name of Pennan III am described in Schedules A, B, C, D to that plaint. Plaintiffs and defendants 8 to 11 in O.S 161 of 1965, make common cause as against defendants I to 6 therein. Defendants 4 to 6 in O.S. 161 of 1965 who are the plaintiffs in OZ. 124 of 1964 are the contesting defendants and hence, they are the appellants in A. S. 142 of 1972. Defendants 17 and 18 in O.S. 161 of 1965 have filed a memorandum of cross-objections in A.S. 142 of IOM The case of the plaintiffs and defendants 8 to 11 (as already stated thev are referred to as such in O.S. 161 of 1965) is that all the properties described in schedules A, B, C and D and the sum and substance of which are contained in the schedules to the plaint in O.S. 124 of 1964 are joint family properties in which the branches of Pennan III, namely, defendants I to 6, plaintiffs' branch and Anaikutti's branch, namely, defendants 8 to 11, are entitled to equal shares. This is resisted by defendants 1 to 6
2. The properties in dispute are mostly nania and punja lands and they are situate in four villages. The A schedule properties are in Mullikarumbur village, B schedule properties in Kulumani village, the plaint C schedule properties in Kudalaipatti village and the D schedule properties in Koppu North village and I schedule in Koppu South village. The use of the plaintiffs is that Pennan IT who died in the year 1906, left considerable properties, which, according to the Plaintiffs are his own sell-acquisitions and that they are comprised in the suit schedules A to D and that after the death of Pennan II, Pennan III, the plaintiffs father and the father of defendants 7 to 11 remained as members of a Hindu undivided family and that Pennan III was the Manager thereof and that Pennan111 with the surplus income from the family Properties acquired various properties but in his name set out in schedules A to D and that Pennan III had no- independent means of income other than joint family income and that therefore all such Properties acquired left by Pennan II and all those properties added to them by Pennan III when he was manager of, the joint family are all partible properties and that the plaintiff would be entitled to a one-third share therein. The alternative case is that even if the properties standing in the name of Pennan III are to be considered as his own properties, he threw them into the common stock and thus, there was a blending of such properties with joint family properties and that Pennan 111, Vellian, the plaintiff's father and Anaikutti the father of defendants 8 to 11 treated such blended i3roperties as joint family properties and in that sense also, he was entitled to his legitimate share.
3. We have to note at this stage a second set of pleadings and a different case which is commonly fought out as between the plaintiff and defendants 1 to 11 on the one hand and defendants 12 to 18 on the other. The case of the plaintiff is that defendants 12 to 18 have no interest in the suit properties at all. To further his contention a common cause is made through the 4th defendant that Pennan I died about 75 years ago and he left very little properties which did not produce any income and that after the death of Pennan 1, Pennan IT left the village and his two brothers Chinnan and Vellian and what little properties Pennan I left were taken over by Chinnan and Vellian and therefore, there was a severance in status and in enjoyment between Pennan II and his two brothers and therefore the branch of Chinnan and Vellian now represented by defendants 12 to 18 have no interest in the suit properties at all. On the other hand, defendants 17 and 18, who resisted such a stand would aver that there was no division or partition' as between Pennan 11 and Chinnan and Vellian and that the family being an agricultural family, Ponnan II continued to be the manager and notwithstanding the fact that each of the branches grew from time to time by the birth of sons and grandsons, there was no partition at all and the properties acquired by Pennan II in the four villages referred to in the plaint and the later accretions should be treated as Joint family properties in which they should be deemed to be the sharers. They admit that defendants 17 and 18 were in possession and enjoyment of some properties in some of the villages 'referred to above and, that, therefore, they were entitled to a one-sixth share each, as their father Vellian was entitled to a one-third share therein. They would allege that the common cause made by the plaintiff and other defendants in the action that Pennan II left the village leaving his two brothers Chinnan and Vellian and the available family properties left by Pennan I, is not true, Ultimately, defendants 17 and 18 contended that the lands in their possession should not be disturbed and even if a decree for partition is made, accepting their contentions, those lands should be allotted to them. As already stated; the common cause made by the contesting parties was that the only properties left, by Pennan I were taken over by his two sons. Chinnan and Vellian, and that, therefore, defendants 17 and 18 have no more surviving interest or title in the other properties of Pennan II. We may at once state that in so far as defendant 13 is concerned, he has filed a memo of compromise and adjusted his claim with the appellant and respondents 1 to 8. It is recorded.
4. We shall presently consider whether the claim of the 17th & l8th defendants, whose legal representatives are now before us and who have filed cross objections in A.S. 142 of 1972, questioning the finding of the trial Court that, Pennan H left his father's properties '(Perman I's) and disclaimed totally any interest therein and made it over t o his other two brothers to be enjoyed by them absolutely, is sustainable or not No independent case was, put forward by defendants 13 to 16. Defendant 12 died and his legal representatives were brought on record.
5. We shall now take up the main contest as between the plaintiff and defendants 8 to 11 on the one hand and defendants I to 6 on the other. It is common case of parties that Pennan 11 when he died in or about 1906 left the properties in the four villages as above and those properties should be taken to be his self acquisitions and not properties imprinted with the character of ancestral properties. The case of the plaintiff is that after the death of Pennan II, Perman III, the plaintiff's father and the father of, defendants 8 to 11 constituted members of an undivided Hindu family and improved the same by purchasing the properties in Pennan III's name and that therefore, they were entitled to a one-third share therein. The 4th defendant who sails along with his natural brothers defendants 5 and 6, would say that his stepbrother, the first defendant herein is the cause of this litigation. He would deny that there were any properties of Pennan II which formed the nucleus for Pennan III. The specific case of the 4th defendant is that after the death of Pennan-II Pennan-III and his two brothers Vellian and Anaikutti enjoyed their share in the self-acquisitions of their father Pennan II separately and that they have been purchasing properties in their own right and to the knowledge of each other and that after the death of Pennan II there was a division between the three brothers, namely, Perman-III and his two brothers and that by their conduct they made, it known that they were divided members. The further case is that Pennan-III was independently securing lease of lands and borrowing moneys from third parties and it was this which formed the foundation for the various acquisitions made by Pennan III in his own name. He would also rely upon a will executed by Perman III, in and by which he left certain properties to his sons, defendants 1 to 6 and also to his two wives. There are positive indicia that the properties which are the subject matter of these two suits are his self acquired properties and that the suit O. S. 124 of 1964 was filed against the step-brothers, namely, defendants I to 3, for partition based upon the two wills executed by Perman III on 19-7-1950 and 14-11-1953. The 4th defendant incidentally states that he has paid off a large portion of the debts of Pennan III besides paying income-tax, which in any event, should be paid over to him in case the Plaintiff's contention is upheld~ He also sets up an independent claim with-regard to item V in the schedule properties and says that it is his own property. Defendants 8 to 11 support the case of the plaintiff.
6. We are not traversing the pleas raised by defendants 13 as his claim has been adjusted in this appeal.
7. On the above material pleadings the following issues, have been framed and -the suits were tried together as per the directions of this court--
1. Whether-Pennan Ambalagaran and his three brothers constituted a Hindu joint family as alleged?
2. Whether the three sons of Pennan Ambalakaran after his death remained as members of the joint family as alleged in the plaint or whether the three sons separately got and separately enjoyed their shares in the acquisitions of the father?
3. Whether the properties purchased by Pattaidar Pennan Muthiriar since 1905 are joint family properties as contended by the plaintiff?
4. Whether 35 cents in item 5 of A schedule is the exclusive property of the 4th defendant?
5. Whether, Akkandi was validly married to Chinna Ambalagaran, if not whether defendants 12 to 16 have any rights to in the family?
6. What provisions have to be made for discharging the debts contracted by Pattaindar Pennan Muthiariar?
7. Whether the 4th defendant is entitled to be paid the amounts paid by him for discharge of his father's debts and the amounts paid towards agricultural income-tax?
8. Whether the suit had been property valued and proper court-fee paid?
9. To what shares if any are the parties entitled and in which items of the suit properties?
10. Whether the defendants 1 to 6 and their father have prescribed title by adverse possession?
11. To what relief?
8. The learned Judge held that Pennan III and his two brothers remained as members of a joint family as alleged in the plaint and that the properties purchased by Pennan III and the properties purchased by the 4th defendant described as item 5 in the A schedule are all joint family properties and that the suit properties are not the self-acquisitions of Pennan III. There, was no serious argument on the finding that item 5 in the A schedule standing in the name of the M defendant is joint family property. We, therefore, confirm this finding of the trial Court. After answering the other Issues, the trial court decreed both the suits. Hence, the appeal A. S. 142 of 1972 by defendants 4 to 6 and by them as plaintiffs in O. S. 124 of 1964, the appeal A.S. No. 141 of 1972.
9. In order to set at rest the controversy whether Pennan II did have at the time of his death any ancestral properties which he obtained from Pennan I, it would be convenient at this stage to deal with that part of the dispute as between the branch of Pennan II and the two other sons of Pennan I, who figured as defendants 12 to 18 in the suit. We have already referred to the- fact that defendant 13, after adjusting his differences filed a memorandum of compromise and therefore, the contest between defendant 13 on the one hand and the members of the branch of Pennan II may be closed. But the controversy as between the above branch of Pennan II and defendants 12 and 14 to 18 survives. Excepting for the contest by defendant 17 and 18, there was no independent argument on the side of defendants 12, and 14 to 16. In their memorandum of cross objections, the legal representatives of defendants 17 and 18 question the finding of the trial court which held against them. The cross-objectors' case that the lower court acted merely on the hearsay of the plaintiff and some of the defendant who had no personal knowledge about the transactions and events. The sheet anchor of their defence is that as there is no clinching evidence to prove that there was a division in status or division by metes and bounds of the family properties as between Pennan II and his brothers Chinnan and Vellian, the case of defendants 17 and 18 now pursued by their legal representatives is that they, as the heirs, who are alive in the branch of Vellian, would be entitled to a one-third share in the suit properties. They would also make capital of the fact that they have been made parties to this action by the plaintiff and as it is the common case that their ancestors were in possession of some lands (not identified) in two out of the four villages in which the joint family properties are situate they should be considered as undivided members of a Hindu joint family in the light of alleged evidence of such possession of lands which might have originally belonged to Pennan I. They produced Exs. B 143 to B 163 and B 233 to B 254. They are all kist receipts evidencing payment of kist by the 17th defendant. It is also brought out that the 17th defendant in his own right, mortgaged the lands in Mudalaipatti village under Ex. B 230 and that the legal representatives of the 17th defendant had to discharge the same. on the strength of such possession of lands, it is said that there was no division in the family at all. Referring to the evidence of D W 2, who is the plaintiff who admits such enjoyment of Mudalipatti lands by the 17th defendant, since Pennan II left them to his brothers, they would point out that the plaintiff has no personal knowledge as to whether Pennan II and his brothers Chinnan and Vellian were divided or not. They would refer to the alleged vague evidence of PW 1, who is the 4th defendant in O.S. 161 of 1965 who also speaks to some hearsay evidence to the effect that Pennan III told him that lands of the family ere left over for the benefit of Chinnan and Vellian. Specific reference is made to the fact that PW I is also not aware of the date or the mode of division of Pennan I's lands. DW 5 who is the 17th defendant as well as DW 6, would only refer to their separate enjoyment of the Mudalaipatti lands and would assert that the mere fact that they were in possession of some properties of Pennan I cannot lead to the irresistible inference that the - ancestors of defendants 12 to 18 should be deemed to have separated themselves from Pennan II. In the end however they would pray that defendants 17 and 18 together should be granted a decree for a one-third share in the entirety of the admitted joint family properties which were iii the possession of Pennan II at the time of his death or In any event, the properties in the possession of defendants 17 and, 18 respectively be sustained without themselves being deprived of the same.
10. In answer to this claim in the cross objections, the contention of the other party contesting the same which include the plaintiff and defendants 1 to 11 is as follows - Pennan I as per, the record left- only two items of properties in Eteri village as is seen from pattas marked as Ex. D I (a) and D I (b) in an, earlier action between the parties in 0. S. 13 of 1946 on the file of the Sub Court, Tiruchi. Besides Pennan I had a one-eighth share along with seven others in another property as is seen from Ex. B 271, and both the above lands were dry lands of an extent of 12 to 16 acres and that as per Ex. A 196 which was the written statement filed by Pennan III in an earlier action, the small extent of lands held by Pennan I were unproductive dry lands and its income could not have exceeded more than Rs. 50 per annum. A reference is also made to the evidence of Pennan III who was examined in O. S. 13 of 1946, Pennan III reiterated in the above suit that the entire lands left bv Pennan I, were cultivated by his uncles Chinnan and Vellian, the ancestors of defendants 17 and 18 and that Pennan II was independently exerting himself by taking on lease lands belonging to third parties besides trading in grains and paddy. The ancestors of defendants 17 and 18 were parties to that suit and never contradicted the evidence of Pennan III. In fact in that suit the Court accepted the case of Pennan III and impliedly negatived the claim of Vellian and Chinnan over the other properties acquired by pennan II. A reason able inference from the conduct of the ancestors of defendants 17 and 18 is that they never claimed any interest in the properties acquired by Perman II in his own right and a fortiori therefore, they cannot claim any interest in the properties of Pennan III. We are unable to accept the interested testimony of DW 5 w4o is the 17th defendant that his father gave all his earnings to Pennan II. He has no personal knowledge about it . Though he is aged 85 years, he would only speak by himself. He has not even seen Pennan IT and he is not aware personally whether his father gave any money to Pennan II. Having regard to the fact that DW 5 himself would admit that the so-called ancestral lands which came into the hands of Pennan II were 12 acres of punja lands and that they were not cultivable unless there was rain and as there was no corroborative acceptable evidence the case of defendants 17 and 18 that all the properties held by Pennan 11 and later in the possession of Pennan III and others should be deemed to be joint family properties appears to be a tall and unacceptable claim. It is not known as to why the 17th defendant who was a party to O. S. 13 of 1946 did not give evidence in that suit. The 18th defendant who is younger than him at tempted to speak in that case. His evidence was therefore rightly disbelieved. One other factor which was relied upon by the trial court and which is found on the record is that after Pennan II's death, it was only Pennan III and his brothers who sought for succession certificate to collect the out standings due to Pennan II and even at that time neither Vellian nor Chinnan joined them or laid any claim thereto.
11. One other factor also loans large though incidentally in this case. The judgment in O. S. 13 of 1946 on the file of the Court of the Subordinate Judge, Tiruchirapalli, was the subject matter, of appeal to the District Court to A. S 883 of 1947. At the appellate stage, the suit was; withdrawn with liberty to the parties to file a fresh suit. Defendants 17 and 18 did not file any such suit, but were brought to the scene of action only bV the present plaintiff, who so impleaded them so as to obtain an adjudication of his rights in their presence. The inaction of defendants 17 and 18 lends support to -the conclusion that Pennan II left the ancestral lands with his brothers and was earning by himself without prejudice to Un then joint family properties and that all the acquisitions made by him later should be deemed to be Pennan II's. properties, in which neither the branch of Chinnan or Vellian including defendants 17 and 1-8 can claim any share.
12. Regarding the lands in MudalaiPatti village, they are the properties purchased by Pennan III after the death of Pennan II, under Ex. A. 55 dated 4-o1942. We have already held that the woss-objectors cannot project any right to the properties acquired by Pennan II. Defendants 17 and 18 and their legal representatives before us want to take advantage of the fact that the lands were leased back by Pennan III to them. The factum of lease was accepted by a competent court in O. S. 13 of 1946. In fact, a similar claim made by defendants 17 and 18 as is made now, over the MudaliPatti lands was negatived. As Pennan III himself purchased the lands in 1943, their Possession pursuant to a lease granted by Pennan III thereafter could not be for a Period of 60 years as claimed by them Rightly, therefore, the trial court discountenanced such a plea also. It is, therefore, clear that Mudalaipatti lands are not ancestral lands and the case of the defendants that they paid the kists for the land. In the absence of a patta of such lands in their names is absolutely a, false claim and has to be rejected. The appellants have filed the kist receipts and DW I in his evidence, has stated that the Patta for all the lands including MudalaiPatti lands stood in the name of Pennan III and that they were the owners thereof. The mere fact that Pennan III allowed defendants 17 and 18 to cultivate the lands purchased by him, under Ex. AL. 55, and which was also referred% to by Pennan III in O. S. 13, of 1946 does point out that the case of defendants 17 and 18 wherein they project a claim over the lands at Mudalaipatti is untrue. In fact, defendants 17 and 18 themselves admit that they were cultivating the lands only after it was purchased by Pennan III. They could not have, therefore, perfected their title to it by adverse possession. The fact that defendants mortgaged the Mudalaipatti lands under Ex. B 230 cannot improve the situation. He did not have the original document of title of Ex. A 55. That was produced by the appellants in the present suit and marked as such. Obviously defendants 17 and 18, taking advantage of their possesion which was by itself permissive contrived to mortgage the property.. 'The recitals therein belie the case of defendant 17. He gave an indemnity as to title and would say that himself and his sons are ancestrally enjoying the lands. Even as regards the other mortgage as Ex. A. 232, we are persuaded to say that the transaction is not a bona fide one. Without being in possession of the title deed and without the challenging coparcener establishing that the mortgaged property was joint family property, the claim for 'adverse possession is absolutely a misconceived one. It may be that the mortgagee who advanced moneys under the two mortgages Exs. B 230 and A 232, might have filed a suit and obtained a decree. But it is on a misrepresentation that the mortgage was created and a decree has 'been suffered. That cannot be taken advantage of by a person who has no right, title or interest over the same. We agree with the trial court that defendants 17 and 18 Were only in permissive possession of such lands and in the absence of any acceptable material evidencing title-in them over such lands, the cross objections are without any substance and they are, therefore, dismissed.
13. All parties have agreed that the properties left by Pennan II were his self-acquired properties. Obviously, this contention is based on the proved fact that Pennan II, left the small extent of lands which he got from his father Penw I for the benefit of his two brothers Chinnan and Vellian,and was eking his own livelihood and purchased properties, by exercise of his volition, without prejudice to any ancestral property in his hands. We shall therefore proceed on the agreed assumption that-all the properties left, by Pennan II were his self-acquisitions and at t time of his death in 1906, Pennan II, Vellian, father of the plaintiff and Anaikutti, father of defendants 8 to 11, were his undivided sons. The primary question mooted before us is:-
When a Hindu father, who is joint and undivided with his sons at the time of his death dies, leaving self-acquired properties of his, in what manner the sons who continued to be joint with him toke that property?
Is it joint family property in their bands with all the incidents attached to such a concept or do they take it as tenants in common?
In spite of the enlightened cobwebs of orthodox Hindu law having been shed by the introduction of; the statute law in Hindu Succession - Act of, 1956, yet, the law relating to joint family which is a peculiar doctrine among Hindus still shoots posers which are not easy of solution. The peculiarity in Hindu Law is that the kith and kin of an owner of property acquired an interest in such property even before his demise. This is adumbrated in the principle of right by birth. Daya (heritage) in Hindu law from hoary times has been classified under two heads Apratibandhadaya and Saprathibandhadaya which expression to the extent possible has been translated in English as 'unobstructed heritage' and 'obstructed heritage'. Unobstructed as the term itself -connotes and interest, in praesenti and such an interest is attributed to his birth in the family. The son, grandson and great grandson have such vested rights by birth in the property of their father and their Pitha Maha (father's father) and -they acquired an interest by birth in such property of their father and grandfather. The question is, if the property left by the father is his Swayarjita or self-acquired property, does the son acquire an interest in it by birth and incidentally therefore the question arises if there are more than one son, who, at the time of the death of the father, are undivided, do they inherit the same or do they collectively take the property by survivorship by reason of their birth and hold the same as Joint family property amongst them selves. Law of succession amongst the Hindus, particularly, with reference to the Joint family property follows the nature of the particular property in question and the status of the person is sometimes not material for consideration. The question whether the undivided sons of a Hindu father take his self-acquired pro perty as tenants in common or as joint tenants with rights of survivorship has to be necessarily decided by determining the nature and character of the property taken by them in their hands. (Vide Lakshmi Narasamma. v. Ramabrahmam : AIR1950Mad680 ). We have referred to two kinds of Daya. The first heritage is relatable to the right by birth which in Hindu Law is available to a son, sons' son and the son's son's son. In the second kind of Day namely Sapratibandha Daya, the existence of the owner is a fundamental obstruction and the right of inheritance accrues only on the death of the owner. (Vide Lakshminarasamma v. Ramabrahman AIR IV Mad 680). If, therefore, the law of succession amongst Hindus would follow the nature of Incidence of the particular property, the necessary weightage has to be given and a dichotomy created in the case where undivided sons of a father seeks an answer to the query whether they inherit the same or succeed, to the same. If they inherit the same, then it would be a case of sapratibandha daya. If they survive to the same as members of a coparcenary, it would be a case of apratibandha daya. This distinction, in our view, has to be borne in mind before we answer the question first formulated by us.
14. Mr. Kesava Iyengar in a lucid expression of the intricacies of law of joint family squarely relied upon the decisions reported in Vairavan Chettiar v. Srinivasachariar (1921)ILR44Mad 499 (FB), Katama Natchiar v. Srimut Raja Mootoo Vijaya Raghunadha Bodha Goorooswamy Peria Odaya Taver, (1861-63) 19 Moo Ind App 539 (PQ, Balwant Singh v. Rani Kishori 1898ILR20All267(PC), Jogeswar Narain Deo v. Ram chandra Dutt (1896) ILR 23 Cal 670 (PC), Raja Chelikani Venkataramayamma v. Raja Chelikani Venkayyamma Garu, (1902) 29 Ind App 1 156 (PQ Mt. Bahurani v. Rajendra Baksh Singh ; Bhagwan Dayal v. Reoti Devi : 3SCR440 ); Lakshminarasimha v. Ramabrahman : AIR1950Mad680 , Ranganatha v. Kumaraswami : AIR1959Mad253 . Contending equally with felicity and force, Mr. M. R. Narayanaswami would strongly rely upon a Full Bench decision reported in Mst. Ramdei V. Mst. Gyarsi ILR (1049) All 160 and the ratio in Shyam Behari Singh v. Rameshwar Prasad ILR 20 Pat 904 : AIR 1942 Pat 213 : : AIR1942Pat213 ; Nana Tawker v. Ramachandra Tawker, (1909) ILR 32 Mad 377; Narasimha v. Narasimham (1932) ILR 55 Mad 577: 62 Mad LJ 436; Fakirappa v. Yellappa (1898) ILR 22 Born 101, Ganeshprasad v. Mazarilal ILR (1942) All 759 (FB).
15. Whilst Mr. Kesava Iyengar would contend that Pennan III and his brothers who were admittedly joint with their father Pennan Il on the date of his death, acquired those properties of pennan II as tenants in common, Mr. K R. Narayanaswami's contention is that,they took it as Joint tenants with rights of survivorship inter se.
16. For a digression which is necessary this case, we have to remember the established rule of stare decisis which compels us to abide by well-known precedents of the past Instead of venturing to alter the same. Raghava Rao J. in Paramanayakam v. Sivaraman : AIR1952Mad419 (FB) while dealing with the rule explained it thus -
'The rule of 'stare decisis' only means that where a rule has become settled law It is to be followed although some possible inconvenience may grow from a Strict observance-of it, or although a satisfactory reason is wanting, or although the principle and the policy of the rule way be questioned.'
It is also a guiding rule to courts that when an ancient precedent which has stood the test of times for over 50 years is available, and that too in the nature of a Full Bench decision of a particular High Court that should be the guiding factor to the Judges sitting in a Division Bench and a fortiori to a single Judge. Preferring the ratio of a Full Bench decided by a different High Court may border on impropriety. This rule of prudence would naturally keep the scales of Justice in the same court steady and unwavering and make it not susceptible to private sentiments of a judge, human as he Is. We have referred to the doctrine of stare decisis prefactorily, since we are constrained to respect the decision of the Full Bench of the Madras High Court reported in Vairavan Chettiar v. Srinivasachariar (1921) ILR 44 Mad 499, rather than to accept the principle laid down by the Full Bench of the Allahabad High Court in Mt Ramdei v. Mt. Gyarsi ILR (1949) All 160, which is diametricallv opposite to the ratio in the first cited Full Bench decision. We shall now proceed to give our reasons.
17. Mitakshara explains the two terms Apratibandha daya and Sapratibandha daya thus -
'The wealth of the father or of the paternal grandfather becomes the Property of his sons or of his grandsons, in right of their being his sons or his grandsons; and that is an inheritance not liable to obstruction. -But property devolves on parents or uncles, brothers, or the rest, upon the demise of the owner, if there be no male issue; and thus the actual existence of a son, and the survival of the owner are impediments to the succession, and on their ceasing, the Property devolves on the successor in right of his being uncle or brother. This is an inheritance subject to obstruction.'
It is undisputed, since it is not disputable, that the father in so far as his own property is concerned, has an unrestricted power to alienate the same either testamentarily or otherwise, the son can project only a right in the nature of expectancy in the fathers self-acquisitions. It is in the nature of a spes successionis. To adopt with respect the enlightened observations of Lord Macnaghten in Raja Chelikani Venkayyamma, Garu v. Raja Chelikani Venkataramanayyamma (1902). 29 Ind App 156 (PC). 'He is his fath6es son and if his father does not dispose of it, it will come to him, but is it anything more than a spes. '
The Allahabad High Court in another Full Bench decision reported in Ganesh Prasad v. Hazarilal ILR (1942) All 759, had to consider a similar question. They observed-
'On the death of a Hindu leaving self acquired property the undivided sons succeed to such property to the exclusion of the divided son under the Mitakshara law'.
Two of the learned Judges expressed the view that the undivided sons of a Hindu succeed to the self-acquired property of their father by inheritance and not by survivorship. There was, of course, in the very same judgment a contrary view expressed by a learned single Judge on the above question. In fact, one of the Judges of the Allahabad High Court referred to Venkayamma Garu v. Venkataramanayyamma (1902) 29 Ind App 156 (PC) and made a pointed reference to the observation -of the Law Lords in that case which reads that 'the members of a joint family who succeed to self-acquired property, take it jointly' and the learned Judge said that this is the same thing as saying that they take the property by survivorship. The observations of Lord Justice Turner in Katamanachiar v. Raja of Sivaganga (1861-6.3) 9 Moo Ind App 539 (PC) that the law of partition shows that as to the separately acquired property of one. member of a Hindu family, the other members of the family have neither community of interest nor unity of possession. Though the above observation might not have been quite necessary for the decision in the above case (Katamanachiar's case), yet such observations which are in the nature of valuable propositions, though prima facie obiter dicta in nature, carry great weight. The Full Bench of the Allahabad High Court in Mt. Ramdei v. Mst. Gyarsi ILR (1949) All 160 (FB) was of the view that the self-acquired property of a Hindu father which his sons, who were joint with him, take on his death, was in their hands joint family property and as between the sons and their descendants, it was subject to all the incidents of a coparcenary is a dictum which we, with great respect, are unable to follow having regard to the contrary view expressed by our court in Vairavan Chettiar v. Srinivasachariar (1921) ILR 44 Mad 499 (FB). With great respect, to the learned Judges, who presided over,,., the case in Mst. Ramdei v. Mst. Gyasri MR (1949) All 160 (FB), even the questions in Mitakshara referred to by them, do not fully support the conclusion. Dr. Sen who pioneered the said view accepted by the learned Judges in the Full Bench decision of Mst. Ramdei v. Mst. Gyarsi ILR (1949) All 160 is constrained to observe 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'.
The last portion of the opinion of Dr. Sen underlined by us creates a doubt whether the principle propounded is of universal application. Even the learned author Mayne touching on this ' aspect is rather vacillating. He would say -
'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 birth right, though dormant, and enables the son to succeed to the property by survivorship as Aprathibandha Daya'.
With utmost respect to the learned author, we are still at pains to logically adopt the same for the reason that the son has no justiciable right over the self acquired property of his father, when he is alive to seek for a share therein or interdict the father from in any way dealing with it to his prejudice. So long as such a right of the son revolves round an air of expectancy rather than reality, we sustain the view that the undivided son's right over the self-acquired proper of his father can only be as Saprathibandha Daya and not unobstructed heritage or Aprathibandha Daya, as Aprathibandha Daya or unobstructed heritage is traceable to an existing right which in turn is relatable to the right by birth in the Hindu family. The very fact that such a right is dormant-during the lifetime of the father, completely buttresses the same and ultimately the undivided son or sons can only inherit such self acquired properties of their father as tenants in common with no rights of survivorship inter se as between them. The principle of joint tenancy with rights inter se, surviv6rship, is unknown to Hindu Law except in the case of joint property of an undivided family governed by Mitakshara Law which under that law passes by survivorship. (Vide Jogeswar Narain Deo v. Ranichandra Dutt (1896) ILR 23 Cal 670 (PC), Mt. Bahurani v. Rajendra Baksh and Bhagwandayal v. Reoti Devi : 3SCR440 ). It is no doubt true that if a father dies leaving separate property and also leaves sons some of whom are divided from him and some remained joint with him, the undivided sons would exclude the divided sons, in the matter of taking the self-acquired property of the father (see Nana Tawker v. Ramchandra Tawker (1909) ILP, 32 Mad 377, Narasimharao v. Narasimham. (1932) ILR 55 Mad 577: 62 Mad Li 436, Fqkirappa v. Yellappa (1898) ILR 22 Bom 101, Ganesh Prasad v. Hazarilal ILR (1942) All 759 (FB)' But that does not necessarily mean that the undivided sons take- the self-acquired Property of their father as joint tenants. A divided son severs his connection wit the family and particularly, his father for all purposes. He takes his share in the ancestral property, if any, and is not mindful of the expected share of his in the self-acquisitions of the father. At the time when he left the family and divided himself he had only a right of expectancy in his father's absolute properties. He Voluntarily cut off that knot of expectancy and was prepared to surrender it, even though it was not in reality a ripe right at that time. This is the basic truth behind the accepted principle that a divided son cannot claim any right in the self-acquired property of the father along with the undivided brothers of his. This is understandable because no man can help one who does not want to help him self. The divided son cuts himself off from the family and he cannot re-enter the same merely for purposes of aggrandizing himself to the prejudice of those undivided sons who knit themselves with the father in filial bondage. We are unable to agree with Mr. M. R. Narayanaswami that as continuance in the coparcenary is the sine qua non to enable the undivided I son to take the self acquired property of the father to the exclusion of the divided son, they should necessarily take it as coparceners and not as tenants-in-common. We have already categorically expressed that the law of succession amongst Hindus follows the nature of the particular property in question and the status of the person is immaterial, it, therefore, follows that the argument of Mr. Narayanaswami that it is only their status at the time of th6 father's death that would decide the character of the estate is not acceptable to us. There is nothing inconsistent in Our view to saV that a divided son is excluded in the matter of the share of the self acquired property of -the father, whereas the undivided sons take the property not as coparceners inter se with rights of survivorship but only as tenants in common. No doubt, Varadachariar J. in Venkateswara Pattar v. Mankayammal : AIR1935Mad775 , speaking for a Division Bench took a view that according to the scheme of Mitakshara Law, the succession of sons even in respect of their father's self-acquired properties is by survivorship. Though this decision was rendered 14 years after the decision of a Full Bench of our court in Vairavan Chettiar v. Srinivasachariar (1921) ILR 44 Mad 499 (FB), yet this was not referred to. But on the other hand, A. S. Panchapakesa Ayyar J. speaking for the Division Bench in Ranganatha v. Kumarasami : AIR1959Mad253 , adopted the dictum in the Full Bench in Vairavan Chettiar v. Srinivasachariar (1921) MR 44 Mad 499 (FB) and observed-
'This Full Bench decision was delivered in 1921, and has never been dissented from by any decision of this court or any' other Court till now much less overruled by the Supreme Court or the Privy Council. It has stood the test of 37 years and we are satisfied that it does not deserve to be referred to a fuller Bench especially as we have absolutely no doubt regarding its correctness'.
What is, however, urged before us is that the decision of the Full Bench of the Allahabad High Court in Mst. Ramdei v. Mst. Gyarsi ILR (1949) All 160 followed the ancient text. As a matter of fact, Kaul J. while speaking for the Full Bench in the Allahabad High Court said -
'that the proposition that the sons of a Hindu though joint with him, acquired no interest in his self-acquired property by birth is -opposed to express text of the Mitakshara and other Hindu books'.
Our answer to this is found in the forcible observations of Rajamannar C. J. in Lakshminarasamma v. Ramabrahman ILR (1950) Mad 1084, 1089 -
''However deplorable this may be we, are at a stage when we are not free to go back to the law as enunciated and discussed in ancient books of Hindu Law, untrammelled by judicial decisions. There can be no doubt that as between the original text and a decison of the Judicial Committee we cannot choose to follow the former and refuse to be bound by the latter'.
18. We add we cannot choose to follow the ancient text as was done by the Allahabad High Court, and refuse to be bound by a Full Bench decision of our Court reported in Vairavan Chettiar v. Srinivasachariar (1921) ILR 44 Mad 490 (FB). -
19. We have thus to fall back on the decision of the Full Bench of our in Vairaven Chettiar v. Srinivasachariar (19211 ILR 44 Mad 499 (FB), which clinches the issue in question. The main contention of the respondent in the Madras Full Bench case was that even though the deceased father may have had absolute powers of disposal over the debt due to him, there is yet a coparcenarv between himself and his undivided sons, which operates to alter the character of the properties into coparcenary properties as, soon as he dies and in such a case a son gets it by right of survivorship. Reliance was placed upon the dicta in Mana Tawker v. Ramachandra Tawker (1909) ILR 32 Mad 377 and Fakirappa v. Yellappa (1898) ILR 22 Bom 101. It was in, that context that )kumaraswami Sastri J. who wrote the leading judgment in Vairavan Chettiair v. Srinivasachariar (1021) ILR 44 Mad 499 (FB), reiterated that the observation of the Privy Council in Balwant Singh v. Rani Kishori (1898) ILR 20 All 267 was only a moral precept and not a rule of law capable of being enforced. The Full Bench referred to early rulings and accepted also in principle that the son acquired no legal rights over his father's self-acquisitions by reason of the text of Mitakshara. After accepting the above dictum the Full Bench observed thus -
'It is difficult to see how there can be any coparcenary between the father and the sons as regards self-acquired property over which the sons have no legal claim or enforceable rights Coparcenary and survivorship imply the existence of co-ownership and of rights of partition enforceable in law, and a mere moral injunction can hardly be the foundation of a legal right'.
Again quoting Sartai Kuari v. Deoraj Kuari's case (1889) ILR 10 All 272 (PC), the Full Bench of our court noted with approval that the property in the paternal or ancestral estate acquired by birth under the Mitakshara law is so connected with a right to partition that it does not exist where there is no right to it. Undoubtedly, a son and in the instant case, Pennan III, and his brothers Vellian and Anaikutti did not have a right to demand a partition from his father in regard to the self-acquired properties of Pennan II. We are, therefore, of the opinion that as undivided sons had only a bare expectancy and an imperfect or inchoate right over the self-acquired properties of their undivided father, they could only be heirs under Hindu Law to such properties and they cannot claim heritage as if it was Aprathibandha Daya. They had no right by birth nor is' it contended before us that they had any such right. We have to therefore necessarily follow the dictum in Vairavan Chettiar v. Srinivasachariar (1921) ILR 44 Mad 499 (FB) which is a direct decision which is binding on US.
20. We may also refer to a case of the Supreme Court reported in Arunachala v. Muruganatha : 1SCR243 , which reiterates' the untrammelled power of the Mitakshara father to sell his self-acquired immovable property to a stranger without the concurrence of his sons and make even unequal distribution amongst his heirs. Effectively, the principle in Vairavan Chettiar v. Srinivasachariar (1921)ILR44 Mad 499 (FB) is assented to by the Supreme Court also by necessary implication. The net result of the discussion is that we are unable to agree with Mr. Narayanaswami that the three sons who are themselves members of a Hindu joint family inherited the self-acquired property of Pennan II and they took it as joint family propert)r not merely between themselves and their sons but amongst themselves. On the other hand, we are of the view that Pennan III and his brothers took Pennan II's property as co-heirs under the law of inheritance and as tenants in common. There is high authority for the. proposition that coheirs take properties as tenants in common. Vide Khadersa Hajee Bapu v. Pulten Veettil Ayisa Ummath (1911) ILR 34 Mad 511 and Yerukola v. Yerukola, (1922) ILR 45 Mad 648.
21. The only properties as admitted in this case were the self-acquired properties of Pennan II which were inherited by Pennan III and his brothers as tenants in common and the other self-acquired properties of Pennan M earned by him. Therefore~ the only right of pennan III and his' brothers would be to get their share only in Pennan II's properties and the income therefrom. If it transpires that Pennan III utilised any such income in excess of his legitimate share, he would have to account for it to his other brothers. In the instant case, there is no clear proof whether Pennan III utilised Pennan II's properties or the income therefrom to the prejudice of his brothers. This has to be established in the final decree proceedings. If once it is proved that Pennan III utilised Pennan II's properties for acquiring properties in his own name then only the right which the brothers of Pennan III and in this litigation the plaintiff and defendants 8 to 11 can claim would be to get their share of income so irregularly utilised by the heirs of Pennan III, who are defendants 1 to 7 and they cannot claim any sham in the acquisitions made by Pennan III in his own name. This u because Pennan III was only a tenant in common with respect to the properties of Pennan II inherited by him as co-heir with his brothers. It is a matter of proof whether Pennan M was in possession of more than one-third share of the properties left by Pennan II and whether he used or utilised such excess share or other properties of pennan II or the income therefrom for acquiring properties of his own in his own name which was to the prejudice of the plaintiff and defendants 8 to 11. This is a matter again to be investigated in the final decree proceedings.
22. The next incidental question which arises for consideration is whether there has been a severance in status and a division as between Pennan III, Vellian and Anaikutti. Mr. Kesava Iyengar would fairly say that there is no clinching evidence as to the date and manner of the severance amongst the co-tenants, but he would refer to a series of transactions indulged in by the three brothers which would conclusivelv establish that they so conducted themselves as to give the impression to the outside world that they were independently enjoying the properties inherited by them from Pennan II and were treating those Properties as their own with the concurrence of the other two that one was treating the Properties in his possession as if they were his own and such dealings were to the knowledge and concurrence of the other two. It is common case of parties before us that soon after the death of Pennan II, Pennan III, Vellian and Anaikutti were enjoying defined portions of the properties inherited by them from Pennan II and were either selling or mortgaging the same to the knowledge of all. Therefore, it is contended that no case of partition has arisen, as each of the sharers are already in possession of definable properties of Pennan II and in that sense, no occasion has arisen for a preliminary decree for partition. We may at once state that no acceptable material has been placed before us to show that the three coparceners are in enjoyment of specific items of property left by Pennan II. In this sense, therefore, a preliminary decree for partition cannot be avoided, even if we accept the rather forcible argument on merits made by Mr. Kesava Iyengar. He has referred to us various documents under which the borrowings were made by Pennan III and contended that all the properties purchased by him were from extensive borrowings from third parties. , By way of elucidation, we shall refer to some of those incidents. Exs. A 193, A 190, B 38, B 192, A 189, A 205, A 208 etc., show how Pennan III was dealing with those properties. In course of such dealings, some documents such as Exs. P 192, A 189, A 191 etc., were all attested by Anaikutti. Some of the borrowings made by Pennan III were discharged by Anaikutti himself - vide Ex. A 121. In fact, the plaintiff himself under Ex. A 110 received money from Pennan III and cancelled the debt due therein. Similarly, Vellian had his own independent transactions. Under Ex. A 198 Vellian purchased properties. Under Ex. A 200 Anaikutti sold some property to Vellian. Under Exs. A 204, A 211, A 212, A 213 etc., Anaikutti sold certain properties to the plaintiff himself. We have evidence on record to show that Anikutti had independently dealings by himself vide Ex. A 219 etc. We have only illustratively referred to such transactions which are relied upon by Mr. Kesava Iyengar to show that there has been a severance in status between Pennan III and his brothers. He would ask' u., to consider the cumulative effect of such dealings inter se as between the brothers and between the brothers and third parties. Reference is also made to the oral evidence of D. W. 2 to sustain a case of severance. No doubt, there is abundant volume of evidence in this case both documentary and oral to urge that the brothers were enjoying the proper ties of Perman II independently at least to some extent But would that be sufficient to conclude that there was severance as between themselves and that there has been a partition of properties by metes and bounds. We are afraid that we are not in a position to opine that way. One significant factor in the course of this litigation was stressed before us to sustain the case of severance in status. Reference is made to an earlier litigation between the parties in O. S. 13 of 1946 already referred to. The 12th defendant in O. S. 161 of 1965 was the plaintiff in O. S. 13 of 1946. Pennan II and his three sons and others were parties to that litigation. The allegation was that there was a severance in status. This suit was, however, ultimately withdrawn in 1949 under Ex. B 272. What is urged before us is that by merely asking for a partition, a member effects severance in status, as between all the members in the joint family. Reliance is pla4 I upon the decision in Soundararajan v. Arunachalam (1916) ILR 39 Mad 159 (FB). It is urged that the subsequent withdrawal cannot have any effect in the disruption in status of the family. In this sense, therefore, Mr. Kesava Iyengar contends that there has been such a severance in status. We should at once point out that the appellants were not able to pin-point with any precision as to when exactly the severance in status, if at all there was one, took place. We are not inclined to accept the broad proposition that notwithstanding the withdrawal of the suit O.S. 13 of 1946, still it should be held that the family has divided itself in all respects because one of the members of the composite coparcenary in which Pennan II was the head, filed a suit for partition and later withdrew it. The legal position relating to severance in status is by now well established. We are not in this case referring a in detail to the voluminous exhibits in which Pennan III, Vellian and Anaikutti and their respective heirs conducted themselves in dealing with the properties in their possession. This is un- doubtedly a case where Pennan III, Vellian and Anaikutti domestically and in ternallv arranged to enjoy the properties of Pennan II separately. But it is not clear from the evidence on record nor has it been brought home to us as to what were the properties each of the sons of Pennan II took after his death. The dealings would only show that there was a mixing up of the properties when it suited them. One brother was borrowing and the other brother was discharging the debt. In some cases one of the brothers attested as a witness to the borrowings made by his brother. If at all there was a consistency, there was consistency in inconsistency. The voluminous records produced do not give us a clear impression that there was a division by metes and bounds as between the brothers. As already stated, each was enriching him self by purchasing properties in their own name. Each was lending money and in turn borrowing moneys. Such an admixture of events and citation of facts do not evidence an unequivocal intention or an explicit declaration either as such or by conduct to sever. In order that conduct alone should be the sole criteria for a conclusion about severance, the Privy Council in Girija Bai v. Sadashiv Dhundiraj AIR 1916 PC 104, said that the intention to separate may be evinced in different ways either by explicit declaration or by conduct and if it is an inference derivable from conduct, it will be for the court to determine whether it was unequivocal and explicit. There is no such clinching record or material for us to gain that impression. In Surajnarain v. Iqbal Narain 0913) ILR 35 All 80 (PC) once again the principle was re-affirmed that a definite and unambiguous indication by one of the members of a joint family (may be tenants in common) is necessary to separate himself and to enjoy his share in severalty. But to have that effect the intention must be unequivocal and clearly expressed. Separation from commonality does not as a necessary consequence effect a division. Such intention should not be purely subjective and exist in vacuum but should be made known objectively as Subba Rao J. in Raghavamma v. Chenchamma : 2SCR933 said-
'The process of manifestation may vary with circumstances. What form that manifestation should take would depend upon the circumstances of each case. 'Thus, the knowledge of the members of the family of the manifested intention of one of them to separate from them is a necessary condition for bringing about that member's severance from the family.
Vide also the decision in Puttarrangamma v. Rangamma AIR 1968 St 1018. Though Mr. Kesava Iyengar was at pains to refer to the various circumstances touching upon the conduct of the parties and said to be evidence of an unequivocal declaration on their part to sever and separate, yet we are unable to comprehend such a situation. The conduct of the parties no doubt fairly touch upon their behaviour to separately enjoy the properties which they inherited from pennan II. In what share they were enjoying is yet to be found. If ultimately, in the final decree proceedings it is found that eacb of the sons of Pennan II was enjoying fairly a third of the properties left by Pennan II, then there may not be much of difficulty but if they were unequally enjoying their shares, then it has to be found whether Pennan III or Vellian or Anaikutti benefited themselves by causing a prejudice to the joint property. In any event, however, the properties purchased by Pennan III or Vellian or Anaikutti in their names, shall be their own properties subject, however, to accounting by them, if it becomes necessary to the other brothers in case they were in enjoyment of properties in excess of their legitimate share. The properties in the name of Pennan III shall be and ought to be accepted as his own properties. As, in our view, the three brothers took Pennan II's properties as tenants in common and not as members of an undivided Hindu family, the principles laid down in M. Girimallappa, v. Yellappagouda, AIR 1959 SC 906, Mallesappa v. Mallappa, : 3SCR779 ; and a judgment of this court in Kumaraswarni v. Subba Gounder : AIR1977Mad353 , would not apply. The case of the plainiiff and defendants 8 to 11 is that Pennan III was in sole management of the entirety of the properties. Even if he was, it cannot be said that he was in possession of those properties or any share in excess of his legitimate share as the 'manager of an undivided Hindu family'. It may be that a co-owner was irregularly enjoying the properties of another co-owner. As already stated by- us, he would only be accountable to the income from those properties enjoyed by him in excess of his 'legitimate share. Even if in the course of such enjoyment he has purchased properties in his own name, they will be his self-acquisitions, but the only responsibility of his would be to shed the excess share of his possession and account for its income to his other two brothers. Mr. Narayanaswami's contention is, that applying the principles in the above cases cited, the aquisitions made by Pennan III should be equated to the accretions made by the manager of a Hindu undivided family. This principle will not squarely apply to a case of co-sharers or co-owners. In the case of the three brothers in question, they had indisputably a right over a third of the properties. By accident or by sufferance or by consent, if Pennan III or any one of the other brothers were in possession, of and in enjoyment of a sham which is not equal to one-third share of Pennan II's properties, they would only be surcharged for the corpus or income which they enjoyed until a physical partition takes place. But their exertions which are independent as co-owners without reference to the others cannot be said to be for the benefit of the other two co-owners. In this sense, therefore, the question as to nucleus, blending, throwing into the common stock, etc., which would arise only in cases of acquisitions made by coparceners from and out of the Income of coparcenary properties when they remained joint do not arise and are not relevant for purposes of the present case. This is because the case in question relates to acquisition from and out of inherited properties held as tenants in common and not from coparcenarv property held as joint tenants. The adjustment of equities, therefore, should be made as indicated above.
23. The only surviving question is whether the suit is barred by limitation.
24. Here again, we are unable to agree with Mr. Kesava Iyengar, that the wit is barred by limitation. We have in the earlier portion of our judgment expressed the view that in spite of voluminous evidence, oral and documentary, there was no proof of clinching material aliunde to show that there was a severance as between the co-owners 'in a realistic sense and that there was an equitable and equable division of their independent third share amongst themselves and there was not even evidence to show that at any particular point of time any such declaration was made and expressly communicated by one to the other so that an ouster of the same in relation to the properties held by the other two could reasonably be inferred. We have also referred to the impact which the earlier 1946 suit had in. the course of this litigation. P.S. 13 of 1946 was filed in which Pennan III and almost all the parties to the present actions were parties. Pennan III besides making assertions of severance and his independent title to all his properties did not pursue his stand to the - end and there was no real adjudication on the rights of, parties excepting pleadings. No doubt, the trial court rendered its judgment in O.S. 13 of 1946. But the main suit was withdrawn at the appellate stage. It is, therefore, doubtful whether the infructuous pleadings by themselves and the evidence let in that case to show that each of the brothers were dealing with the properties of Pennan II in their possession, as if it was their own, cannot succinctlv and pointedly lead to the conclusion that there was an assertion of hostile title by Pennan III, Vellian and Anaikutti, by one as against the other. It is only in cases of such proven ouster and established assertions of sole and exclusive title and denial of title in others, the question of adverse possession can arise. If adverse possession is, established and proved to the satisfaction of courts, then only Art. 65.or Art. 113 of the Indian Limitation Act would apply. The case before us could at best be illustrative of the position that co-owner was enjoying some portion of the joint properties whilst others were enjoying the other portions. At best it was the result of a subjective domestic adjustment of rights. There is no showing that such enjoyment was by virtue of an agreement or a proved understanding. Even in a case where a member of a Hindu family, who is divided in status from others is in enjoyment of some portions of the family properties while others enjoy other portions is not in law excluded or ousted from other portions so as to disentitle him to his share of those portions however long their enjoyment by others. (Vide Kumarappa Chettiar v. Saminatha Chettiar. 1919 ILR 42 Mad 431. We are unable to find, nor is it seriously urged before us that Pennan III or Vellian or Anaikutti were in exclusive possession of a defined or identifiable portion of Pennan II's properties and that such possession was adverse to the other two brothers. Borrowings made to the knowledge of others or dealings had inter se between the brothers or evidence of mutation proceedings or proceedings for mutation of names have to be understood as an. understanding conduct as between the brothers without any legal implications thereto and such domestic adjustments of rights in a family forum cannot be the sole criteria for deciding legal rights and particularly on a question whether the suit laid by the plaintiff and consented taL by some of the defendants is barred by the statute of limitation. In fact, in Nirman Singh v. Rudrapartab Narain Singh, (1926) 51 Mad LJ 836 (PQ the Privy Council characterised proceedings for mutation of names as not a judicial proceeding in which the title to and the proprietary rights in immoveable property are determined, but are more in the nature of physical enquiries instituted in the interest of the State for ascertaining which of several rival claimants to the occupation of immovable property may be placed in possession of it with greater probability that the Revenue will be duly paid. Even so, the illustrative examples referred to by us earlier out of the many transactions quoted before us by Mr. Kesava Iyengar, which in. turn refer to the dealings each of the brothers had either independently or in conjunction with one another cannot be misunderstood as conduct which reflects upon the title of each of the brothers over the respective properties dealt with by them. At best they have persuasive value but by themselves cannot be conclusive of title and evidence of ouster or adverse possession. Govindrao v. Rajabai , cited by Mr. Kesava Iyengar, to support his plea that the suit is barred by limitation presents a different set of facts. There it was established beyond doubt that the possession of one of the owners was adverse for more than the statutory period with reference to the other co-owners. In fact, there was evidence in that case that one co-owner did not have possession or participation of profits in the properties for more than the statutory period and that in spite of knowledge that such properties in which he had an interest were adversely being enjoyed by others, the affected party kept quiet. It was in those circumstances, the Privy Council in Govindrao v, Rajabai held that the possession of one party was adverse to the others. But in our view there is no such clinching evidence in this case. The case reported in Parbati v. Naunihal Singh (1909) ILR 31 All 412 (PC) relied upon by Mr. Kesava Iyengar was also a case in which the members of a Hindu family agreed that the joint property should be held and enjoyed by the various members of the family in certain defined sham which they specified in writing in public record. It was in those circumstances the court held that the transaction and conduct of the members of the family with respect to the management of the property had been on the basis that it was held In separate shares from that time. We have expressed the view that the cumulative effect of all the transactions had when Pennan III was alive and which had a relevant impact upon the conduct of Vellian ,and Anaikutti, as also the conduct of the three co-owners could not have been on the basis that there was any agreement on the basis of which they were in possession of the properties of defined shares in the properties of Pennan II. The position of each of the brothers was as a result of a mutual unwritten understanding and this does not effectively give out to the outside world that such possession of their properties sprang from a mutual final adjustment of rights. There is no proof excepting the suit of 1946 which was later on withdrawn that there was a demand and a refusal to account by one to the other. The cause of action prior to the institution 6f the present suit did not come into being earlier. So the period of limitation cannot run - until the cause of action arose. In our view, the cause of action rose for the first time on the institution of the present suit. In the ultimate analysis we are unable to find that any one of the brothers was ousted or excluded from the joint properties so as to allow the law of limitation t* operate. We agree with the court below that the suit in within time.
25. The result of our discussion. So above, could be sudimarised thus;-
1. The plaintiff is granted a declaration that he is entitled to a one-third share to the properties left by Pennan II.
2. If it is found in the course of the final decree proceedings that either Pennan III and his branch or Vellian and his branch or Anaikutti and his branch were in possession of properties in excess of one third share in Pennan II's properties, they would have to shed the same and account for mesne profits in respect, of such excess of properties their possession, to the plaintiff
3. In so far as the properties standing in the name of Pennan III or Vallian or Anaikutti, they shall be their respective self acquired properties and shall be considered as such.
4. There is no positive proof that there has been, a severance, in status or an effective division as between the co-owners, viz, Pennan III, Vellian and Anaikutti and the evidence on record either independently scrutinised or cumulatively considered does not give such an impression.
5. In so far as the Will Ex. A 168 executed by Pennan III is concerned, it would be valid and -enforceable as regards his own properties acquired by him and also in so far as they relate to the properties acquired by Pennan III after the death of Pennan II, as in our view they should be his self acquired properties and in consequence he would have a valid disposing power-over them.
6. As we find, as already stated, that .he suits are within time.
26. A preliminary decree for partition is, therefore, passed in favour of the plaintiff declaring his right over the one-third share in the properties of Pennan II and in so far as the accounting portion inter se as between the parties is concerned, it is relegated to the final decree proceedings.
27. We shall now take up O. S. 124 of 1964 against which A.S. 141 of 1972 arises. This is a suit in which the sons of Pennan III through his second wife are fighting the sons of Pennan III 'through his first wife. The plaintiffs in this suit are defendants 4, 5 and 6 in O.S. 161 of 1965. The defendants in this suit are defendants 1, 2 and 3 in that suit. The plaintiffs alleged that the properties described in schedules A to E are the self-acquired properties of Pennan III and they were acquired by him as his absolute property by his own exertions without reference to the joint family property or income. According to them Pennan III executed a Will Ex. A-168 bequeathing the suit properties in favour of the plaintiffs and the defendants in equal shares and though each of them was enjoying the properties separately by mutual consent and agreement, yet the first defendant in this suit has unauthorisedly interrupted the possession of the plaintiffs and was enjoying the income of all the properties to the prejudice of the plaintiffs and it has, therefore, become necessary for them to sue for partition and separate possession of their one-half share in the suit property. Later on they included the properties set out in schedules A-1, B-1, C-1, D-i and E-1. In so far as these properties are concerned, the plaintiff's case is that they are joint family properties in which the plaintiffs and defendants are both entitled to a one-third share and the plaintiffs alone being entitled to one-sixth share. The defendants denied that the suit properties as originally contained in the' plaint are the self-acquired properties of their father. They would set up a case of blending of the properties acquired, by Pennan III from Pennan II and that all the suit properties included in schedules A to E and A-1 to E-1 are joint family properties and that a division if at all has to be made in that light. As in the view of the defendants in this case the properties are all joint family properties, the Will as such is unenforceable. In so far as the rest of the pleadings are concerned, the defendants' case is that there was always an undivided joint Hindu family and the rights of parties had to be worked out in that light. Thereafter, the pleadings in O.S. 161 of 1965 which has already been set out, are repealed by the defendants.
28. The learned trial Judge in view of his findings earlier held that the Will Ex. A-168 is unenforceable in all respects. He also held that the parties agreed that there was no E schedule property. He rendered a judgment in accordance with his findings as above.
29. But in view of a partial -modification of the judgment of the trial Court in the light of our discussions in A.S. No. 142 of 1972, we modify the judgment of the court below in 0 S. 124 of 1964 as under-
As there was no argument before us about the validity of the Will Ex. A-168, it is upheld. We hold that Ex. A-168-will be operative not only as regards the properties which Pennan III would acquire as per our decision in O.S. 161 of 1965 which is a one-third share in Pennan II's properties, but also with reference to the properties which he purchased and acquired in his own name after the death of Pennan II. We also pass a preliminary decree for partition as prayed for by the plaintiffs in respect of their one-half share in such properties as per the directions in the Will and relegate the parties in respect of the accounting of the mesne profits therefrom in the final decree proceedings.
30. In the result, therefore, A.S. 141 of 1972 and A.S. 142 of 1972, are allowed in part and a preliminarv decree shall issue in each of the cases as per our judgment above. All the parties both in the court below and before us shall bear their own costs and such costs shall come out of the estate.
31. The cross-objections filed by the legal representatives of defendants 17 and 18 stand dismissed, and there will be no order as to costs.
(These appeals and memorandum of cross-objections having been set down this day for being mentioned, the court made the following order):
32. The Chief Justice:- Learned counsel appearing before us agree that as no orders have been passed apparently by inadvertance in C.M.P. No. 9232 of 1977, which was an application to bring on record the legal representatives of the deceased 13th respondent, it has to be ordered. Accordingly, the said C.M.P. No. 9232 of 1977 is ordered as prayed for.
33. As regards the cross-objections in A.S. No. 141 of 1972, counsel agree that in view of the judgment already rendered by us they have to be dismissed, and the cross-objections filed in A. S, No. 142 of 1972 have to be allowed as this result follows from the judgment.
34. Order accordingly.