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Godavari Lakshminarasamma Vs. Godavari Rama Brahman and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Case NumberAppeal No. 209 of 1946
Judge
Reported inAIR1950Mad680
ActsHindu Law; Limitation Act, 1908 - Schedule - Article 144; Code of Civil Procedure (CPC)
AppellantGodavari Lakshminarasamma
RespondentGodavari Rama Brahman and ors.
Appellant AdvocateK.V. Venkatasubramania Iyer, ; K. Kameswara Row ; and N. Rammohana Rao, Advs.
Respondent AdvocateK. Bhimasankaram, Adv.
Cases ReferredCorea v. Appuhamy
Excerpt:
family - inheritance - hindu law and code of civil procedure, 1908 - plaintiff's husband entitled to property of maternal grandfather as tenant in common with his brother - wife claimed moiety after husband's death - whether wife of tenant in common entitled to property after tenant's death - right of wife denied on ground of absence of male issue as per hindu law - above said law not applicable in cases of property inherited by maternal grand father - wife of deceased husband entitled to his moiety. - - the plaintiff's case shortly was that the properties in schedule a originally belonged to one reddi rama brahmam and on his death devolved successively on his widow subbamma and daughter lakahminarasamma and thereafter on the two sons of the daughter, namely, the deceased husband of.....1. the plaintiff in o. s. no. 29 of 1944 on the file of the subordinate judge of rajahmundry is the appellant. she is the widow of one mruthinjaya rao. she sued for partition and separate possession of her half share in certain immovable properties described in schedule a to the plaint. defendant 1 is the brother of her deceased husband. defendants 2 to 4 are the undivided sons of defendant 1. defendants 5 and 6 were made parties because they were in possession of portions of properties having obtained them in exchange for properties belonging to them. the plaintiff's case shortly was that the properties in schedule a originally belonged to one reddi rama brahmam and on his death devolved successively on his widow subbamma and daughter lakahminarasamma and thereafter on the two sons of.....
Judgment:

1. The plaintiff in O. S. No. 29 of 1944 on the file of the Subordinate Judge of Rajahmundry is the appellant. She is the widow of one Mruthinjaya Rao. She sued for partition and separate possession of her half share in certain immovable properties described in Schedule A to the plaint. Defendant 1 is the brother of her deceased husband. Defendants 2 to 4 are the undivided sons of defendant 1. Defendants 5 and 6 were made parties because they were in possession of portions of properties having obtained them in exchange for properties belonging to them. The plaintiff's case shortly was that the properties in Schedule A originally belonged to one Reddi Rama Brahmam and on his death devolved successively on his widow Subbamma and daughter Lakahminarasamma and thereafter on the two sons of the daughter, namely, the deceased husband of the plaintiff and defendant 1 and that the two brothers became entitled to and enjoyed the properties as tenants in common and on the death of her husband his moiety devolved upon her. The contesting defendant was defendant 1 whose written statement was adopted by his undivided sons, defendants 2 to 4. He denied that items 7, 10 and 11 of Schedule A belonged to Rama Brahmam. The other items were admitted to have been inherited by the two brothers but it was pleaded that the two brothers inherited them not as tenants in common but as joint tenants with eights of survivorship inter se. Defendant 1 further stated that these properties were enjoyed jointly along with their joint family properties without any distinction and that, therefore, on the death of the plaintiff's husband, defendant 1 became entitled to the entire interest in the properties. It was also pleaded that the plaintiff's rights, even if there be any, were barred by adverse possession of defendant 1. The learned Subordinate Judge held that items 7, 10 and 11 of Schedule A did not form part of Ramabrahmam's estate and that even in respect of items which formed part of that estate, the plaintiff was not entitled to any relief on two grounds, namely, (1) that the plaintiff's husband and defendant 1 took their maternal grandfather's properties not as tenants-in-common but as joint tenants with right of survivorship and (2) that the suit was barred by time and defendant 1 had acquired title by adverse possession against the plaintiff. So far as the actual enjoyment was concerned, the learned Judge held that there was nothing decisive either way, and it was consistent either with tenancy-in-common or joint tenancy. On these findings he dismissed the suit.

2. The main and most important question which falls for decision in this appeal is whether the properties which belonged to Ramabrahmam were inherited by the plaintiff's husband and his brother defendant 1 as tenants-in-common or as joint tenants with right of survivorship. According to Hindu law, this question must ultimately be decided by determining the nature and character of the property taken by them in their hands. It is common ground that they took them as the heirs of their maternal grandfather.

3. It is also common ground that the two brothers were members of an undivided Hindu family. The learned Subordinate Judge held that the case was directly governed by the ruling of the Privy Council in Venkayamma v. Venkataramanayamma, 25 Mad. 678 : 29 I. A. 156 where it was held that the rule of survivorship would apply to the property inherited by two brothers from their maternal grandfather when they were members of an undivided Hindu family and when they were sons by the same daughter of the propositus. This is undoubtedly so. The appellants's learned counsel therefore, instead of distinguishing the case in vain, took the straight course of trying to get rid of the decision altogether. This obviously he could not do with the limitations of this Court by attacking the correctness of the decision as if this Court could pronounce the judgment to be wrong when it was given. But the learned counsel contended that having regard to the other and subsequent decisions of the Judicial Committee, the authority of Venkayamma v. Venkataramanayamma, 25 Mad. 678 : 29 I. A. 156 as a legal precedent not only has been shaken but has practically been destroyed. Having regard to the onerous nature of the task he undertook of trying to persuade us to hold that the decision of the Judicial Committee has become obsolete. Mr. K. V. Venkatasubramaniam the learned counsel for the appellant addressed to us a very learned and exhaustive argument. He covered a very wide ground and incidentally digressed into topics which did not have a direct bearing on the question in issue. We acknowledge the great assistance he has given us, especially by his reference to the original texts and the historical development of the doctrines of Hindu law as expounded in the original texts and as interpreted, modified and abrogated by Judicial decisions.

4. Today it is quite evident that not a little of confusion in understanding the law as found in the original Hindu law texts has been due to an ignorance of Sanskrit words employed to express certain fundamental concepts and to the inevitable infiltration of foreign conceptions consequent on the translation into English adopting a phraseology current in that language. Such confusion is not confined to the domain of law and is to be found in other cultural spheres as well. Words like 'dharma' 'rasa' 'ananda' 'brahmam' which really have no exact equivalents in English were translated into English words which had altogether different or in any event inadequate connotation and significance. Words like 'daya', 'pythamaha' used by ancient writers of Hindu law in their English rendering take different shape and meaning. In the train of such imperfect translation followed the use of English legal phraseology to describe Hindu legal conceptions not infrequently with anomalous results.

5. 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 on Hindu law untrammelled by judicial decisions. There can be no doubt that as between an original text and a decision of the Judicial Committee we cannot choose to follow the former and refuse to be bound by the latter. Because of this, we shall refrain, not without reluctance, from using much of the learning which Mr. Venkatasubramaniam placed before us.

6. At one time it was understood that in this Presidency governed by the Mitakshara, though an undivided Hindu was entitled during his lifetime to the enjoyment of his self-acquired immovable property without sharing it with the other members of the joint family, on his death without male issue such property devolved on his surviving coparceners and not on his widow who was only entitled to maintenance. The widow's right to her husband's property in the absence of male issue depended on the status of her husband at his death. If he died undivided, the widow was not entitled to anything but maintenance. If he died divided, then she was entitled to inherit his property (Viradiperumal v. Ardanari, 1 M. H. C. R 412 This proposition was assumed by their Lordships of the Judicial Committee in Vijaya Raghunadha v. Angamoottoo Natchiar, 3 M. I. A. 278 because they state that the question of fact as to division or no division appears to be the only point on which the main question of title to his property will ultimately depend. But when their Lordships came to finally decide on the question of title to the same property in Katama Natchiar v. Vijaya Raganadha (Sivaganga case), 9 M. I. A. 539: 2 W. R. 31 there was a complete revolution as to the very basis of the widow's right. The status division or no division did not matter; what mattered was the nature and incidents of the property in question. After finding that Gowri Vallabha Tevar and his brother were undivided and that the zamindari was the self-acquired property of Gowri Vallabha their Lordships took up the question :

'What is the course of succession according to the Hindu law of South of India of such an acquisition, where the family is in other respects an undivided family?'

They start with the initial assumption affirming in general terms the right of the widow to inherit on the failure of male issue and state that there are certain qualifications of this proposition in favour of widows. According to them the material consideration was the limits of the qualification rather than the limits of the right. The qualification of the widow's right, their Lordships found, depended upon survivorship. If the foundation of a right to take any property by survivorship failed there were no grounds for postponing the widow's right to any superior right of the coparceners in the undivided property. The fact that there was a general state of coparcenership as to the family property was not sufficient. The law of succession would follow the nature of the particular property in dispute. The separate or self-acquired property of one member of a joint family did not survive on his death to the other members of the family. Therefore the widow was entitled to succeed. Their Lordships advert to the principles of Hindu law as regards survivorship in the following words:

'According to the principles of Hindu law there is coparcenership between the different members of a Hindu family and survivorship following upon it. There is community of interest and unity of possession between all the members of the family and upon the death of any one of them the others may well take by survivorship that in which they had during the deceased's lifetime a common interest and a common possession.'

7. The very question which arises in this appeal arose in Jasodar Koer v. Sheo Pershad Singh, 17 Cal. 33. Petheram C. J. and Banerjee J., held that the property inherited by the brothers from their maternal grandfather was not governed by the rule of survivorship. The reasoning of the learned Judges is very instructive. From an examination of the authorities the following two propositions were deduced: (i) that the principle of survivorship applies only to those descriptions of joint property in which the right of co-owners arises by birth or which form the property of re-united coparceners under the special texts of the Mitakshara law or which are accretions to either of these two and (ii) that the property inherited by brothers from their maternal grandfather is not any of these descriptions. The Sivaganga case 9 M. I. A. 539 : 2 W. R. 31, laid down that the rule of succession applicable to any case depends upon the nature of the property and not upon the status of the family and that the text of the Mitakshara limiting the widow's succession is to be regarded as a qualification of the larger and more general proposition in favour of widows and consequently in construing it we have to consider what are the limits of the qualification rather than what are the limits of the right. In the opinion of the learned Judges the construction of the Mitakshara in the light of this ruling clearly established the first of the two propositions mentioned above. The second proposition was founded on the doctrine deducible from the Mitakshara that a property obtained in the ordinary course of inheritance is never subject to that incident. The learned Judges also point out that the view that the right by birth arises only with regard to what is called the unobstructed heritage, i.e., the property of the father, the grandfather and perhaps also the great grandfather was in accordance with Hindu law.

8. Swaminadha Pillai v. Thangathanni, 19 Mad. 70, was not a case in which the nature of the property inherited by two brothers from their maternal grandfather was directly in question. There a Hindu who was divided from the rest of his family died without issue and his property passed in succession to his widow and mother. On the death of the latter, the property passed to the three nearest surviving reversioners. On the death of one of them issue-less, his widow claimed a third share of the property. It was held that she was entitled torecover and it would not make a difference whether her husband died divided or undivided from his co-reversioners. The learned Judges followed the ruling in Jasoda Koer v. Sheo Pershad Singh, 17 Cal 33, which according to them laid down the rule that the rule of survivorship does not apply to property taken in the ordinary course of inheritance as distinguished from property in which persons have an interest on birth. In the judgment they use thewords 'obstructed heritage', the current translation of lizfrcU/k nk; but it is interesting to note that in their opinion one of its incidents is the heirs are ascertained at the time of the death and take per capita. So understood, the only species of unobstructed heritage, or to use the original expression vizfrcU/k nk;, would be that property of the father in which the son by reason of his birth acquires a right. His right comes into existence on birth and not on death. This was generally described as ancestral property. In Chelikani Venkataramanayamma v. Apparao Bahadur, 20 Mad. 207 : 7 M.L.J. 143, the question directly arose, namely, whether the daughter's sons took the property with right of survivorship. The discussion begins this way at page 216 :

'Having regard to the well-known Mitakshara doctrine of right by birth giving rise to that form of joint properly designated as 'unobstructed heritage,' asopposed to obstructed heritage' it is difficult to see how the present question can be answered except in the negative.'

Though the learned Judges employ the English rendering which contains the word 'heritage' an respect of both kinds of property, it is clear that they recognised that it is only vizfrcU/k nk; that could rightly be called inheritance. That as why they use the expression 'pure inheritance' as an alternative to 'obstructed heritage'. The acquisition of a right by birth by a son, son's son and son's son's son in the property of the father, grandfather and great grandfather could not be correctly described as inheritance. In the case of inheritance properly speaking, if there happened to be two or more co-heirs, the share is ascertained and defined at the time of the death of the propositus. The share of each of the co-heirs is not liable to variation by subsequent birth of a person of the same class. But, in the other case of property to which the principle of right by birth applies, the extent of the share of a member of the family to which the property belongs is not fixed and definite but is liable to variation by births and deaths of other co-owners. The learned Judges refer to the prior decisions in Jesoda Koer v. Sheo Pershad Singh, 17 Cal. 33 and Swaminatha Pillai v. Thangathunni, 19 Mad. 70. According to them the ratio decidendi ofthese cases--two rulings--was that survivorship does not exist in any case in which the property passes as obstructed heritage. In other words, property passing by pure inheritance is not governed by the rule of survivorship ; it is only property of the other kind, namely, ancestral property in which tights to property are acquired by birth that was governed by that rule.

9. This case went up in appeal to the Privy Council and the decision of the High Court was reversed by the Judicial Committee in Venkayamma v. Venkataramanayamma, 25 Mad. 678: 29 I. A. 156 The learned counsel for the appellant took us through the complete report of the arguments of opposing counsel in the case before the Privy Council, namely, Mr. Mayne and Mr. Jardine. But what really concerns us is the judgment delivered by Lord Lindley. We shall, however, make a reference when necessary to anything in the arguments of counsel which is likely to throw light on the question.

10. After stating that Niladri and Appa Rao, the two brothers, on their mother's death succeeded as the heirs to their grandfather's estate, Lord Lindley poses the following question: 'What then was the character of the property which they took?' and he answers it as follows:

'In the grandfather's hands it was separately acquired property; In the hands of the grandsons it was ancestral property which had devolved on them under the ordinary law of inheritance. Niladri and Appa Rao were members of a united family.'

Having described it as ancestral property, the noble Lord immediately cites a passage from the Sivaganga case, 9 M.I.A. 539; 2 W.B. 31 which deals with the incidents of joint family property, the passage which we have extracted earlier in the judgment. It is clear that Lord Lindley was laying down the law, whether it is good or bad law it is not for us to say, that the property which devolved on the two grandsons who were members of an undivided family from their maternal grandfather was subject to the same incidents as the property, to which they were entitled as members of a joint family. The evident basis of the rule so laid down is that the property of the maternal grandfather was as much ancestral as property of the paternal grandfather. It is significant to note that in the answer aforementioned which contains the ratio deaidendi of this case the word 'maternal' is omitted. The case is treated as one of grandfather and grandsons.

11. Lord Lindley then takes up what according to Mr. Mayne was the real objection to the application of the rule of survivorship contained in the judgment of the High Court, namely, that in case of obstructed inheritance the rule does not apply. This is how he stated the view of the High Court:

'The High Court have proceeded on the principle that although persons who succeed to joint family property take jointly if their inheritance is unobstructed, yet that in oases of obstructed inheritance those who succeed take as tenants in common and not as joint tenants.'

With greatest deference to their Lordships of the Judicial Committee it must be said that the language is most unhappy. It is not open to us to say more but this statement is important, so far as it goes, to destroy an argument put forward on behalf of the respondent that besides separate property and joint family property (ancestral property), there is another species of property which may be called joint property to which category the property inherited by the daughter's sons from their maternal grandfather may be assigned. His Lordship then refers to the instances mentioned by Mr. Mayne in his argument to show that even in cases of obstructed inheritance there may be cases when the heirs take as joint tenants. Of the three instances mentioned by him, the first is a case of members of a joint family who succeed to self-acquired property evidently of their father. But that instance was apparently not found satisfactory, for his Lordship says: 'It may be that when sons succeed the inheritance as to them is unobstructed.' The remaining two instances are when widows and daughters succeed in the absence of male issue. If it were necessary it could be explained that the case of widows and daughters who take a limited estate on an entirely different footing from heirs who are entitled to absolute estates.

12. The decisions in Jasoda Koer v. Sheo Pershad Singh, 17 Cal. 33 and Swaminatha Pillai v. Thangathunni, 19 Mad. 70, which were followed by the High Court are next dealt with and after a brief discussion pronounced to be erroneous.

13. In our opinion, this ruling of the Judicial Committee clearly was based on the principle that property inherited by daughter's sons who were members of an undivided family from their maternal grandfather had the same character and incidents as the other property of the joint family, namely, the paternal ancestral property. Supposing that one of the two brothers who inherited this property died leaving a son, would he have a right to the property along with the surviving brother? Logically, applying the principle laid down by their Lordships, the answer must be in the affirmative. Though this case never came up directly for decision, other cases came up in which the logical extension of the rule was adopted. In Vythianatha Aiyar v. Yeggianarayana Iyer, 27 Mad. 382, the questionwas whether a son could claim partition and recovery of a share of property which had been inherited by his father from the latter's maternal grand-father. The learned Judges held that he could. They rested their conclusion on the decision of the Privy Council in Sudarsanam v. Narasimhulu, 25 Mad. 149: 11 M. L. J. 356 and the interpretation placed on it by the Full Bench in Karuppai Nachiar v. Sankaranarayans Chetti, 27 Mad. 300. The father who inherited the property from the maternal grandfather took it as joint family property with right of survivorship and under the Mitakshara law there could be no joint family property in respect of which the male issue of joint owners did not by birth become owners with their father. In Kuruppai Nachiar v. Sankaranarayana Chetti, 27 Mad. 300, the Full Bench refused to extend the rule laid down in Venkayamma v. Venkataramanayamma, 25 Mad. 678; 29 I. A. 156 to the case of devolution of the stridhan property of a woman on her sons and to the devolution of the estate of a maternal uncle on his sister's sons who at the time of inheritance were undivided members of a Hindu family. The following observations of the learned Judges at page 310 appear to us to be important in view of the argument advanced by the respondent that the expression 'ancestral property' was used by Lord Lindley in Venkayamma Garu v. Venkataramanayamma, 25 Mad. 678: 29 I. A. 156 to describe the nature of the property taken by the daughter's sons as a mere casual statement:

'In Venkayamma v. Venkataramanayamma, 25 Mad. 678 : 29 I. A. 156 their Lordships of the Privy Council, while stating that in the grand-father's hands the estate was separately acquired property, added that it became ancestral property in the hands of the grandsons when it devolved on them by inheritance, and their Lordships applied the law of survivorship in tracing succession to such property on the death of one of the grandsons. We cannot, therefore, regard the use of the expression 'ancestral property' as suggested by the learned pleader for the appellant as a mere casual statement, carrying no special significance. In the Hindu law the word 'ancestor' is not used in the wide sense in which it is used in English law as merely equivalent to the propositus and as the co-relative of heir. In Hindu law it is used only as signifying a direct ascendant in the paternal or maternal line, and more technically as signifying the paternal grand-father and his ascendants in the male line. ...'

The learned Judges also point out that if we are to understand the expression 'ancestral property' in their Lordships' judgment in Venkayamma v. Venkataramanayamma, 25 Mad. 678. 29 I. A. 156 otherwise than in its technical sense according to which it is property in which a son on his birth becomes an equal owner with his father, the result of the ruling will be that a species of joint family property unknown to the Mitakshara would be brought into existence.

14. In Jamna Prasad v. Ram Partap, 29 ALL 667 : 4 A. L. J. 582, the question to be determined was whether property inherited from the maternal grand-father is ancestral property within the meaning of the Mitakshara in which a son by his birth acquires an interest jointly with his father. The learned Judges held that the son did not acquire by birth an interest jointly with his father in such property. Under the Mitakshara law, the only property in which a son acquires an interest by birth jointly with his father is property which had come to the father from his own father and not from an ancestor in the maternal line. The learned Judges distinguish Venkayamma v. Venkatarammayamma, 25 Mad. 678 : 29 I. A. 156 (Jagampet case)on the ground that the question before them did not arise in the Privy Council case. Being pressed with the use of the expression 'ancestral property' by Lord Lindley, they observed as follows:

'We do not think, however, that the words 'ancestral property' were used in the limited sense in which they are used in the Mitakshara, namely, property in which the sons acquire by birth a joint interest with their father. Having regard to the arguments addressed totheir Lordships by Mr. Mayne, which met with their approval and the instances of joint ownership referred to in the judgment, the only question which appears to have been considered was whether when property devolved by inheritance on persons who were members of a joint family the rule of survivorship applied and the question what constituted ancestral property in the technical sense of the Mitakshara was not discussed or decided.'.

15. With great deference to the learned Judges we are unable to follow them. Did the Jagampet case, 25 Mad. 678 : 29 I. A. 156 decide as an abstract point of law that whenever property devolved by inheritance, it did not matter from whom, on persons who were members of a joint family, the rule of survivorship applied? In that case, the rule of survivorship must apply when more than one succeed to the maternal uncle and in all cases of collateral succession. Surely no one has suggested that this is the law (See Atar Singh v. Thakar Singh, 35 Cal. 1039 : 35 I. A. 206. What really appears to have influenced the learned Judges was the assumption that there was a third kind of property known to the Mitakshara law which was neither ancestral nor self-acquired, because they say :

'It is a well-known rule of Mitakshara law that property may be joint property without having been ancestral.'

One searches in vain for this rule in the Mitakshara.

16. No reported case was brought to our notice after Jamna Prasad v. Ram Partap, 29 ALL. 667 : 4 A. L. J. 582 in which this question was discussed usefully. Nearly thirty years after the Privy Council had to examine the scope of Venkayama v. Venkataramanayamma, 25 Mad. 678 : 29 I. A. 156 and how far the principle of the decision could be logically applied to solve other problems relating to rights in property inherited from the maternal grandfather. In Muhamad Hussain Khan v. Kishva Nandan Sahai the validity of a will was challenged on the ground that the testator had no authority to dispose of property which he had inherited from his maternal grand-father because it was ancestral property. The question was whether such property was ancestral in the testator's hands in the sense that his son acquired therein an interest by birth jointly with him. Their Lordships found a diversity of judicial opinion upon this question in India and proceeded to deal with it as the matter was of considerable practical importance and it was desirable that it should not be left in a state of uncertainty. Their Lordships decided that the estate inherited by the testator from his maternal grandfather cannot be held to be ancestral property in which his son had an interest jointly with him. The way in which their Lordships dealt with the prior decision of the Board in the Jagampet case, 25 Mad. 678 : 29 I. A. 156 is extremely important for the decision of the question before us. In fact, it forms the main foundation of the argument of the learned counsel for the appellant. At page 662 their Lordships observed thus:

'The learned counsel for the appellants argues that the property inherited by a daughter's son from his maternal grandfather is ancestral property, and he relies, in support of his argument, upon the expression 'ancestral property' as used in the judgment of this Board in Venkayamma v. Venkataramanayyamma, 25 Mad 678 : 29 I. A. 156 in describing the property which had descended from the maternal grandfather to his two grandsons. It is to be observed that the grandsons referred to in that case were the sons of a daughter of the propositus, and constituted a coparcenary with right of survivorship. On the death of their mother they succeeded to the estate of their maternal grandfather, and continued to be joint in estate until one of the brothers died. Thereupon, the widow of the deceased brother claimed to recover a moiety of the estate from the surviving brother. The question formulated by the Board for decision was, whether the property of the maternal grandfather descended, on the death of his daughter, to her two sons jointly with benefit of survivorship, or in common without benefit of survivorship. This was the only point of law which was argued before their Lordships, and it does not appear that it was contended that the estate was ancestral in the restricted sense in which the term is used in the Hindu law. Their Lordships decided that the estate was governed by the rule of survivorship, and the claim of the widow was therefore negatived. The brothers took the estate of their maternal grandfather at the same time and by the same title and there was apparently no reason why they should not hold that estate in the same manner as they held their other joint property. The rule of survivorship, whichadmittedly governed their other property, was held to apply also to the estate which had come to them from their maternal grandfather. In these circumstances, it was unnecessary to express any opinion upon the abstract question of whether the property, which a daughter's son inherits from his maternal grandfather, is ancestral property in the technical sense that his son acquires therein by birth an interest jointly with him. This question was neither raised by the parties nor determined by the Board. It appears that the phrase 'ancestral property', upon which reliance is placed on behalf of the appellants, was used in its ordinary meaning, namely, property which devolved upon a person from his ancestor, and not in the restricted sense of the Hindu law which imports the idea of the acquisition of interest on birth by a son jointly with his father.'

Their Lordships then refer to the word used in the original text of the Mitakshara (paithamaha) and take Colebrooke to task for having translated it as 'ancestral'. Whether their Lordships were justified in their criticism of Colebrook's translation or not, it is not for us to say. There is much to be said in his defence and persons interested in the subject can profitably refer to the learned article by Mr. K. V. Venkatasubramaniam in the Hindu Law Quarterly Vol. 1.

17. The learned counsel for the appellant contended that after the decision in Muhammad Hussain Khan v. Kishava Nandan Sahai , Venkayamma v. Venkataramanayamma, 25 Mad. 678 : 29 I. A. 156 has ceased to be binding as a legal precedent, because the legal basis of that decision had, disappeared in view of the later decision. We have seen that this basis was the property inherited from the maternal grandfather was as much ancestral property as the other property which the two brothers owned as joint family property i.e., paternal property. In the later case their Lordships categorically say that it is not such ancestral property.

18. Mr. Bhimasankaram the learned counsel for the respondent relied strongly on the fact that their Lordships do not expressly say that the decision in the Jagampet case, 25 Mad. 678 : 29 I. A. 156 is wrong. Undoubtedly this is so, but the way in which their Lordships apparently justify the actual decision in that casa is certainly not the way in which that decision proceeded. The result is practically to render the prior decision obsolete as a legal precedent. Courts in India are bound by decisions of the Judicial Committee in so far as they lay down the law on any subject. It is the ratio decidendi of such decisions that matters. If the ratio decidendi of an earlier decision of their Lordships is expressly or impliedly abandoned or dissented from in a subsequent decision of their Lordships, we believe the duty of the Courts in India is to treat the earlier decisionas obsolete. If we cannot consistently follow both the decisions, we must follow the later of the decisions.

19. The attempt of Mr. Bhimasankaram was to maintain the authority of the Jagampet case, 25 Mad. 678 : 29 I. A. 156 on a basis different from that apparent from the judgment in that case. His contention was that besides ancestral property in the strict sense in which the son has a right by birth and separate or self-acquired property of a coparcener, there is a third kind of property known to Hindu law to which the rule of survivorship applies, something like the joint tenancy known to the English law. But we consider this contention of his cannot prevail after the definite pronouncement of their Lordships of the Judicial Committee in Mt. Bahu Rani v. Rajendra Baksh Singh in which they re-affirm the dictum of Lord Watson in Jogeswar Narain Deo v. Ramchand, 23 Cal. 670 : 23 I. A. 37 that the 'principle of joint tenancy is unknown to Hindu law except in the case of the joint property of an undivided Hindu family governed by the Mitakshara law which under that law passes by survivorship.'

20. Mr. Bhimasankaram argued that Lord Lindley who delivered the judgment in the Jagampet case, 25 Mad. 678 : 29 I. A. 156 could not be presumed to have decided the question before the Privy council on a point not pressed upon them by Mr. Mayne, counsel for the appellant. On principle we are unable to agree that the decision of a Court should be confined to or should follow the arguments by counsel on either side. Actually, however, we think that Mr. Mayne did contend for the proposition which eventually found favour with their Lordships. He contended that the property in question, which descended at the same time by the same title upon two persons who were members of a joint undivided family, was therefore governed by Hindu law applicable to such cases. He further contended that the mere circumstance that it descended on them as obstructed property should not make any difference. No doubt the conception of ancestral property was not clearly analysed but Mr. Mayne's argument was that property inherited by members of an undivided family was subject to the same incidents as ancestral family property. Now one of such incidents is that the son acquires therein by birth an interest, but the later decision in Muhammad Hussain Khan v. Kishava Nandan Sahai definitely negatives this. We are therefore compelled to this position by the decisions of the Judicial Committee, namely, property inherited from a maternal grandfatheris not ancestral property and there is no other kind of property known to the Mitakshara other than ancestral coparcenary property which is governed by the incidents of joint tenancy known to the English law. We are therefore constrained to hold that the decision in Venkayamma v. Venkataramanayyama, 25 Mad. 678 : 29 I. A. 156 can no longer be followed as a binding authority on the nature and incidents of property inherited from a maternal grandfather.

21. We find that this is the view also taken by leading text-writers on Hindu law. The learned editor of Edn. 10 of Mayne's Hindu law discusses the two decisions of the Privy Council in the Jaggampet case, 25 Mad. 678 : 29 I. A. 156 and in Mohamed Hussain Khan v. Kishva Nandan Sahai at two places. In his opinion, after the later decision, the Jaggampet case, 25 Mad. 678 : 29 I. A. 156 must be confined to its own facts. At p. 664 he says,

'This explanation of the earlier decision is evidently confined to two undivided brothers taking their maternal grandfather's estate and does not affect the decisions of the Courts in India that where two undivided brothers take the property of their mother or uncle or other relations as obstructed heritage, they take only as tenants in common. The Privy Council have laid down in Bahu Rani v. Rajendra Baksh that the principle of joint tenancy is unknown to Hindu law except in the case of the joint property of an undivided Hindu family governed by the Mitakshara law. As a result of their Lordships 'explanation in Muhammad Husain Khan v. Kishva Nandan Sahai it must be taken that no new species of coparcenary property in which the male issue have no interest, has been engrafted on the Mitakshara law as an exception, but that it was a presumption of fact in the earlier case that the property which they inherited from their maternal grandfather was held by them in the same way as they held their family property. The decision in Venkayamma's case, 25 Mad 678 : 26 I. A. 159 cannot be regarded as laying down any rule of law.'

In Edn. 10 of Mulla's Principles of Hindu law, we find the following at p. 246,

'It is submitted that the decision in the earlier case must be confined to its own facts and it was not necessary there to decide nor was any opinion expressed on the precise question whether the property which a Hindu inherits from his maternal grandfather is ancestral property in the technical sense. Should this question arise hereafter, it will have to be answered in accordance with the decision in the later case.'

22. According to the editor of Edn. 8 of Sarkar Sastri's Hindu law the Privy Council have practically disagreed with the decision in the Jaggampet case, 25 Mad. 678 : 26 I. A. 159 (see p. 255).

23. Let us examine the question without reference to case law. According to the Mitakshara, the right of one person in and to the property of another is daya. It is of twokinds : apratibandha and Sapratibandha. The former is where one person acquires rights in another's property even while that other is alive by reason of relationship. In the second case, the existence of the owner is an obstruction. There may be other obstructions as well in individual cases, but this obstruction is fundamental. See Mitakshara, Dayavibhaga Prakaranam, placitum 3 :

r= iq=k.kka ikS=k.kka p iq=RosuikS=Rosu p fir`/kua firkeg/kua p loa HkorhR; izfrcU/kks nk;k% fir`O; Hkzk=knhukarq iq=kHkkos LokE;Hkkos p Loa Hkorhfr iq=lHnzko% LokfelHnzko izfrcU/k% rnHkkosfir`O;Rosu HkzkRk`Rosu p Loa Hkorhfr lizfrcU/kks nk;%

The first kind of daya obtains only in a case where there is a right by birth. In such a case, it is not strictly correct to speak of inheritance at all. When a father owns a property, and he begets a son, what was owned by one before the birth of the son, is owned by the two thereafter. The other case of sapradibandha daya is what may strictly be called inheritance, in which the right of one accrues only on the death of another, according to the established rules of devolution providing for priority based on different considerations like propinquity, capacity to confer spiritual benefit, etc. These two categories of daya are mutually exclusive. The only instance of apratibandha daya known to Hindu law is the right of a son, son's son, son's son's son, in the property of the father, father's father, father's father's father. This is the jenmanaiva swatwa of Yignaneswara.

24. According to the Mitakshara, the son has a right by birth in every kind of property. This must always be borne in mind. Mr. Mayne evidently overlooked this in his argument in the Jaggampet case, 25 Mad. 678: 29 I. A. 156, when be cited the instance of sons taking the self-acquired property of the father as an instance of obstructed heritage. The description is extremely misleading, because it is neither heritage nor is it obstructed. The misconceptions prevailing in this branch of the Hindu law are mostly due to the mistake of equating the right by birth jenmanaiva swatwa with equal ownership (sadrisam swamyam). Though it is true that the son has a right by birth in all kinds of property belonging to the father, the amplitude of his ownership differs according to the nature of the property.

25. In what property then has the son equal ownership with the father? In property variedly described as paithamaha, pithamahopatha, kramagatha, all the epithets connoting the same species of property, the son has anequal right with the father. In property described as swayarjita or swayamopatha, the son's ownership is dormant and subordinate to the father's. But it is certainly not notional. It is as real as the right of junior members to an impartible estate, which is the property of the joint family, Shibaprasad Singh v. Prayagkumari Debee though the father in the one case and the holder for the time being in the other case has absolute power of disposition and though there is no right of partition.

26. To ascertain the extent of the son's right in and to a particular property belonging to the father, it is absolutely necessary to determine whether that property is paithamaha or swayarjitha. This dichotomous division is fundamental. According to Hindu law (and in this there is no difference between Dayabhaga and Mitakshara) property must be one or the other. This division is not only mutually exclusive; it must also be exhaustive. You cannot leave out a property, as not falling in either category, because, how then will you determine the extent of the son's right in such property? For this reason, the descriptive epithets employed to denote the two kinds of property must be treated as illustrative as having been used by way of upalakshana. This aspect is well brought out in the passage from Jagannatha's commentary on the Dayabhaga; which is extracted in the original Sanskrit in the article in the Hindu Law Quarterly, Vol. I, (pp. 85 to 88) which we had occasion to refer above. The epithets 'Paithamahavat' and 'swayarjithavat' are very apt.

iSrkeginL; miy{k.krk;k% vko';dRokr~ vU;FkktUeksU/k iq=L; firq% izfirkegknkxr/kuS };a'kxzg.kkfnfu;eks u L;kr~! u p Lo;adr`Zda miknkua Loh;O;kikjtU;a minkueso oO;a vU;Fkk izfrx`ghr /kUkL;a Lox`ge/;sizkIr fu/k miknkua u L;kr~

27. We have digressed a little. We will now deal with the concept of survivorship as applied to the Hindu law, according to the Mitakshara. The word itself is unfortunate because of its legal implications in English law. There is nothing in the Hindu law exactly corresponding to the survivorship known to the English law. But as that word has been invariably used by text-writers and Judges, and best that we can do is to understand its peculiar significance. According to the Mitakshara School of Hindu law, no property or interest in property of one person is taken by another by survivorship unless the latter had already an interest in that property by reason of his relationship.

This can only be in apratibandha daya, in which there is always the right by birth. It is inaccurate to speak of the interest of a deceased undivided coparcener passing by survivorship to the surviving coparceners. What happens is merely that the interest of the deceased coparcener, lapses on his death. If a father has three sons and all the four are entitled to a certain ancestral property, if one of the sons dies, the only thing that happens is that property which was owned by the four persons thereafter is owned by three. If two more sons are born, then the same property would be owned by five. The true conception, according to the Mitakshara law of joint family, is that in a state of non-division the ancestral property of the family is owned by all the members of the undivided family together, their ownership having accrued to them at the time of their respective births and no new right is acquired on the death of a member.

28. The logical application of this basic conception leads us to the conclusion that in property inherited by two or more persons from their maternal grand-father there can be no right of survivorship in this sense for, the daughter's sons, whether they be sons by the same daughter or by different daughters, did not possess from the time and by reason of their respective births any interest in the property of their maternal grandfather while he was alive.

29. If according to the Sivaganga case, 9 M. I. A. 539 : 2 W. R. 31, the widow is excluded from inheriting her husband's property only, when such property is taken by survivorship by the other coparceners, then we must hold that the property inherited by her husband from his maternal grandfather is not such property and therefore she is entitled to inherit it in the absence of male issue.

30. We, therefore, hold that the plaintiff's husband and defendant 1 in this case took the property of their maternal grandfather as tenants-in-common and after the death of her husband the plaintiff became entitled to his moiety.

31. The learned advocate for the respondent did not attempt to sustain the plea that even assuming the two brothers took the property as tenants-in-common, by subsequent conduct, it was converted into joint family property. The learned trial Judge found that there was nothing decisive in the nature of actual enjoyment which was consistent either with tenancy-in-common or with joint tenancy. He however contended that the plaintiff's claim was barred by limitation because of the exclusive enjoyment of defendant 1 from 1926 or 1927 when the plaintiff's

husband died. The suit was filed in November 1943. In view of the well-established principles applicable to a plea of adverse possession by one co-owner against the other, Mr. Bhimasankaram advanced a rather strange proposition that though the two brothers might have been in law co-owners, defendant 1 and the plaintiff could not be deemed in law to be co-owners because the widow is the heir of the original tenant in common. He was unable to cite any authority supporting this proposition that there could be no co-ownership in law between one tenant-in-common and the legal representative of the other tenant-in-common. The appellant's counsel on the other hand referred us to a passage in the well-known book of Freeman on 'Co-tenancy and Partition'. It runs thus:

'As long as an estate is held by two or more persons by descent, they are parceners. Thus, if one of twodaughters, to whom an estate passed by descent from their ancestor, died, her heir becomes parcener with the survivor. If both the daughters die, their heirs become parceners.'

If then defendant 1 and the plaintiff were in law co-owners, the question is whether there is evidence of ouster or exclusion. As laid down in the leading case of Corea v. Appuhamy, 1912 A. C. 330 : 81 L. J. P. C. 151 the possession of defendant 1 was in law the possession of his own co-owner the plaintiff. Possession is never considered adverse if it can be referred to a lawful title. Mere non-participation in the profits of the property by one co-owner and exclusive possession by the other will not be sufficient to constitute adverse possession by the latter. To constitute ouster by a co-owner there must be an open and unequivocal denial of the title of the other coparcener to the knowledge of the latter. Uninterrupted sole occupation of common property without more must be referred to the lawful title possessed by the pint holder to use the joint estate and cannot be regarded as an assertion of right to hold it as separate. In this case there is no evidence of such ouster. There is evidence thatthe plaintiff continued to stay in the family house even after her husband's death. It is difficult to follow the remark of the learned Judge that she was staying as a dependent. In our opinion, the facts and circumstances of the case do not warrant the finding of the lower Court that the suit is barred by time.

32. Items 7, 10 and 11 of Schedule A appear to have originally belonged to Ramabrahmam's sister Kammamma. Evidently she only had the limited interest of a widow. She conveyed them to her brother Ramabrahmam under EX. D-4. Ramabrahmam conveyed in turn these properties to the father of defendant 1 and the plaintiff's husband by a deed of sale dated 10th May 1901 Ex. D-4 (a). Subsequently, a reversioner of Kamamma's husband filed a suit (O. S. No. 20 of 1913), in the Temporary sub-Court of Rajahmundry at Coconada against the plaintiffs husband and defendant 1 for recovery of these properties. This suit ended in a compromise decree on 6th February 1914 Ex. D 4 (b). The decree provided that the properties be divided into three shares according to good and bad qualities and one share thereof should be taken by the plaintiff-reversioner and the remaining two shares by defendants 1 and 2 i. e., the plaintiff's husband and defendant 1. There is a recital in this decree on which the learned advocate for the appellant rests his case. It is this:

'Each sharer do enjoy his respective share with absolute powers of gift and sale etc., from son to grandson in hereditary succession.'

It was contended by him that virtue of this provision each of the brothers took a third share in severalty. Though this contention is plausible, we find it difficult to accept it. On the date of the decree the two brothers were members of an undivided family. Defendant 1 was still a minor represented by the plaintiff's husband as his guardian. The property had belonged to their father and was in that sense ancestral. It is true that there was a challenge to the title of their father and the dispute was settled by the compromise decree. We do not think that the ancestral character of the property was lost because of the subsequent events. The question then is whether it could be held that there was a division between the brothers so far as this property alone was concerned by reason of the decree. We think not. The primary object of the compromise embodied in the decree was to award a third share to the reversioner and leave the remaining property to the plaintiff's husband and defendant 1. We therefore agree with the learned trial Judge, though for different reasons, that the plaintiff s claim must fail as regards these three items.

33. In the result, the appeal is allowed and the decree of the lower Court is set aside except with regard to items 7, 10 and 11 of Schedule A. There will be a decree in favour of the plaintiff for partition and separate possession of a half share in the properties set out in Schedule A excluding the said three items. There will also be a preliminary decree for an account of the profits in respect of her half share for three years prior to suit and subsequent profits. Parties will pay and receive proportionate costs here and in the Court below.

34. The plaintiff appellant stall pay the court fee due on the plaint and the memorandum of appeal to the Government and shall recover the proportionate court fee paid by her from the contesting defendants. Post this appealfor orders and App. No. 274 of 1946 after 16th October 1949.

35. (In pursuance of the aforesaid directions, this appeal coming on this day for orders the Court delivered the following Judgment) : The parties seek directions as regards division of the property between the plaintiff and defendant 1 with reference to that part of property which is in the possession of defendant 5 under a deed of exchange Ex. D 1 dated 4th February 1933. On 2nd July 1929, defendant 1 made a gift of 4 acres of land from the ancestral property to defendant 1, the daughter of the plaintiff, at the time of her marriage. Subsequently, there was a complaint that the lands were scattered in different parts and that lands at one place may be given instead. It was in these circumstances that Ex. D-1 was executed whereby the lands previously gifted were taken back by defendant 1 and 5 acres out of the suit property were given in substitution. The learned Judge has held in Para. 10 that the gift was reasonable and therefore valid. Of course, it can be valid so far as defendant 1 is concerned. But 5 acres of property which belonged both to the plaintiff and defendant 1 had been given in exchange by defendant 1 for property which he had made a gift of under EX. D-1 (a). The plaintiff prayed that in case the exchange was held to be valid, the lands so exchanged might be allotted to the share of defendant 1 in the division to be effected. The plaintiff will certainly be entitled to this relief.

36. We direct that the properties which we have held are partible between the plaintiff and defendant 1 should be divided by metes and bounds but in making such division, the properties in the possession of defendant 5 under Ex. D-1 should be allotted to the share of defendant 1.


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