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P. Periasami (Dead) By Lrs. v. P. Periathambi And Others
Factual and Procedural Background
The litigation arises out of a partition suit between two branches of the same family. An elder member had amassed extensive agricultural lands that were his self-acquired property. When he died, he left three sons and no grandsons; the sons took possession of the property. Years later, grandsons were born and a formal partition was demanded. During the intervening period, additional lands were purchased from the income generated by the original holdings. The plaintiffs contended that both the original properties and the subsequent purchases were joint Hindu family property, whereas the defendants maintained that the assets devolved upon the three sons by inheritance in defined shares. The trial court decree was carried in Appeals Nos. 141 and 142 of 1972 before the High Court of Madras, which rendered a judgment on 11-1-1979. The present matter consists of cross-appeals (and cross-objections) challenging that High Court decision.
Legal Issues Presented
- Whether, under Hindu law, a father’s self-acquired property descends to his sons (in the absence of grandsons) as joint Hindu family property held in coparcenary, or devolves by inheritance on the sons as tenants-in-common.
- If the property devolves by inheritance, whether lands later purchased from its income acquire the character of joint Hindu family property or remain joint property of co-owners.
- Whether the defendants perfected title to the accreted properties by adverse possession.
Arguments of the Parties
Plaintiffs’ Arguments
- The properties received from the deceased elder, together with subsequent purchases made from their income, constitute joint Hindu family property.
- As coparceners, plaintiffs are entitled to defined shares in all such assets.
Defendants’ Arguments
- The elder’s assets devolved on the three sons by inheritance, not by survivorship, because the elder and his sons never formed a joint Hindu family in relation to those self-acquisitions.
- Accreted properties were personal acquisitions of the defendants; alternatively, the defendants had acquired them by adverse possession.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Viravan Chettiar v. Srinivasachariar, AIR 1921 Mad 168 (FB) | Self-acquired property of a father devolves on sons by inheritance; sons hold as tenants-in-common, not as coparceners. | Treated as stare decisis in Madras; followed to resolve the present dispute. |
| Balwant Singh v. Rani Kishori (1898) 20 All 267 | The Mitakshara text restricting alienation of self-acquired property is a moral precept, not enforceable law; sons have no legal right during father’s lifetime. | Cited to negate any coparcenary right of sons in the father’s self-acquired property. |
| Madan Gopal v. Ram Buksh (1863) 6 WR 71 | Son acquires no legal right in father’s self-acquisition merely by birth. | Reinforces the view that no coparcenary exists in respect of self-acquired property. |
| Jugmohandas Mangaldas v. Sir Mangaldas Nathubhoy (1886) 10 Bom 528 | Same principle as above; son’s right is imperfect and unenforceable. | Cited in support of the Madras Full Bench approach. |
| Rani Sartaj Kuari v. Deoraj Kuari (1888) 10 All 272 | Birthright under Mitakshara is inseparable from an enforceable right to partition; absent that right, no interest exists. | Used to show that absence of partition right confirms lack of coparcenary in self-acquired property. |
| Raja Chelikani Venkayamma v. Raja Chelikani Venkataramanayamma (1902) 25 Mad 678 | Son’s expectation in father’s self-acquired property is a mere spes successionis. | Quoted to characterize the sons’ position as heirs rather than coparceners. |
| Nand Kumar Lala v. Moulvi Reazuddeen Hussain (citation as quoted) | Distinction between apratibandha (unobstructed) and sapratibandha (obstructed) inheritance; ancestral property v. self-acquired property. | Supports the conceptual divide relied upon by the court. |
| Ram Dei Musammat v. Mst. Gyarsi, ILR 1949 All 160; AIR 1949 All 545 (FB) | Contrary view—sons have coparcenary interest in father’s self-acquired property. | Not followed; noted only to illustrate the conflict among High Courts. |
| M.D.R. Ranganatha Mudaliar v. M.D.T. Kumaraswami Mudaliar, AIR 1959 Mad 253; ILR 1959 Mad 298 | Opportunity to reconsider the 1921 Full Bench but declined; treated the Full Bench as settled law. | Cited to show long-standing acceptance of the Full Bench rule in Madras. |
Court's Reasoning and Analysis
The Court observed that High Courts have expressed conflicting views on whether sons obtain a birthright in their father’s self-acquired property. Instead of reopening that controversy, it invoked the longstanding Full Bench decision in Viravan Chettiar, which has been consistently treated as stare decisis in Madras. The Court further noted that the Hindu Succession Act, 1956—particularly Section 19—now provides that heirs succeeding together take as tenants-in-common. Combining statutory policy with the Full Bench authority, the Court held:
- The three sons of the deceased elder obtained his self-acquired property by inheritance, each holding a distinct share as a tenant-in-common; no coparcenary or right of survivorship arose.
- Consequently, properties later purchased from the income of those lands could not be impressed with the character of joint Hindu family property. They are joint acquisitions of co-owners and are partible on that footing.
- The High Court’s finding that the defendants failed to establish adverse possession regarding the accreted properties is a finding of fact that warranted no interference. A plea of adverse possession implicitly recognizes ownership in another; its failure reaffirmed the joint nature of ownership.
- Any accounting for income-derived accretions must be dealt with at the stage of the final decree, treating such assets as joint property of co-owners.
Holding and Implications
All three appeals and the cross-appeals are dismissed, with no order as to costs.
Immediate Effect: The properties in dispute are to be partitioned as joint property of tenants-in-common, not as joint Hindu family property. Accreted assets purchased from the income of those lands will similarly be divided after appropriate accounting in the final decree proceedings. Broader Impact: The Court reinforced the settled Madras position without creating new precedent, relying instead on existing Full Bench authority and the Hindu Succession Act, 1956.
Order
1. These are cross-appeals against the judgment and decree dated 11-1-1979 of the High Court of Madras passed in Appeals Nos. 141 and 142 of 1972 and the cross-objections.
2. It was a suit for partition between two branches of the same family. The properties involved were entirely agricultural. The facts as depicted in the judgment of the High Court are so interwoven with so many details that we have thought it expedient to resort to tremendous shrinking. For our purpose, we condense them to say, sufficedly, that there was an elder, high in the line, who owned these properties. These were self-acquired. When he died years ago, he left behind three sons. He had by then no grandsons born from the loins of those three sons. The property on his death thus came in possession of the three sons. When eventually sons were born to those sons and thereafter grandsons, there came a day when they sought to effect a partition. In this spell of time certain properties allegedly stood purchased out of the income derived from those properties and they were also brought in, being within the nucleus and hence claimed to be partible. It is in this manner that the dispute was spread within the two branches of the family representing lines of two brothers. The plaintiffs claimed partition on the basis that the properties received from the family elder and the accretions made thereto from the income derived from the said property, were both joint Hindu family properties and out of which they were entitled to their defined shares. On the other hand, the defendants joined issue with the plaintiffs, on the question of the descended properties being joint Hindu family properties, taking the plea that the properties had come from the elder to his three sons by way of inheritance and not on the basis of survivorship. The assumption that those three sons and the elder were members of a joint Hindu family was refuted. As a consequence, it was pleaded that the so-called accretion to the properties could not be related to the nucleus factually, as also because unless it could be proved that the nucleus was owned by the joint Hindu family, the accretions could not partake the same character. Further, it was pleaded that these accretions were personal accumulations of the defendants and in case it was not so proved, they were in adverse possession thereof, for which they sought a declaration. This in nutshell is the dispute which is before us; other disputes having been settled in the courts below and others not being put to challenge before us.
3. The pristinely legal question, as discernible hereinbefore, is whether under Hindu Law self-acquired property of a father goes on his death to his sons (in the absence of grandsons) in a joint Hindu family way, in joint tenancy, or does it descend by inheritance to them in well-defined shares as tenants-in-common. On this question there has been grave conflict of opinion in the High Courts and a lot many precedents of binding value are available. In Madras, however, the law in this respect bears a strain, settled way back by a Full Bench in a decision reported in Viravan Chettiar v. Srinivasachariar AIR 1921 Mad 168 wherein the following passage of relevance appears in the opinion expressed by Kumaraswami Sastri, J.—
“So far as the text of the Mitakshara dealing with the rights of the sons in their father's self-acquisitions it has been decided by their Lordships of the Privy Council in Balwant Singh v. Rani Kishori (1898) 20 All 267 that the text,
‘though immovables or bipeds have been acquired by a man himself, a gift or sale of them should not be made without convening all the sons. They who are born and they who are yet unbegotten and they who are still in the womb, require the means of support. No gift or sale should therefore be made’,
is only a moral precept and not a rule of law capable of being enforced. As pointed out in Madan Gopal v. Ram Buksh (1863) 6 WR 71 and Jugmohandas Mangaldas v. Sir Mangaldas Nathubhoy (1886) 10 Bom 528 the son acquires no legal rights over his father's self-acquisitions by reason of the text of the Mitakshara (Ch. I, Ss. 1, 27) but that his right is imperfect one incapable of being enforced at law.
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 at law and a mere moral injunction can hardly be the foundation of a legal right. As observed by the Privy Council in Rani Sartaj Kuari v. Deoraj Kuari (1888) 10 All 272 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. A contention was raised during the course of the argument before the Privy Council in Raja Chelikani Venkayamma v. Raja Chelikani Venkataramanayamma (1902) 25 Mad 678 that sons acquire a right by birth in the father's self-acquired property. Lord Macnaghten observed that he did not quite understand what that right was and observed ‘He is his father's son and if his father does not dispose of, it will come to him; but is it anything more than a spes? So far as a father's self-acquisitions are concerned, the son, though undivided, has only spes successionis and he stands in relation to that property in the same position as heir under Hindu Law. The very essence of the distinction between Apratibandha and Sapratibandha daya is the existence of an interest in the son in respect of properties got by his father. As observed by West and Buhler in a passage (Book 2, Introduction page 19) which was approved in Nand Kumar Lala v. Moulvi Reazuddeen Hussain ancestral property may be said to be co-extensive with the objects of apratibandha daya or unobstructed inheritance.”
(emphasis supplied by us)
4. Contrary views have been expressed in Ram Dei v. Gyarsi ILR 1949 All 160, AIR 1949 All 545 (FB) and many other cases to which reference need not be made. In M.D.R Ranganatha Mudaliar v. M.D.T Kumaraswami Mudaliar AIR 1959 Mad 253, ILR 1959 Mad 298 however, occasion arose to reconsider the above-referred view of the Full Bench of the Madras High Court, but the learned Judges refrained from doing so for by then the Full Bench case of 1921 had been treated as stare decisis. Likewise after a lapse of more than half a century, we would not consider it prudent, just for the sake of uniformity to resolve the conflict raging in the High Courts on this question, more so when the orthodox Hindu Law on the subject is itself now in tumble because of the enactment of the Hindu Succession Act, 1956 and in particular of Section 19 thereof, which says that if two or more heirs succeed together to the property of an intestate they shall take the property—
(a) save as otherwise expressly provided in this Act, per capita and not per stripes; and
(b) as tenants-in-common and not as joint tenants.
5. In view of the interpretation put by the Full Bench of the Madras High Court that the sons in such a situation would get self-acquired property of their father by inheritance, having the status as tenants-in-common, they could not thus treat such properties in their hands, even though joint in enjoyment, as joint Hindu family properties. Likewise the income derived therefrom, if employed to purchase other property, would not cloak the new acquisition with the character of joint Hindu family property but may otherwise be joint properties. We would rather decide this matter on this principle, and we do so accordingly, to hold that the properties which came from the elder, self-acquired as they were, and there being no grandsons, cannot be held by the parties to be joint Hindu family properties but as joint properties simpliciter, capable of partition on that basis.
6. With regard to the accreted property, there is a reference in the judgment under appeal relating to some accounting; after recording the finding that the defendants have failed to prove that that property was in their adverse possession. This is a finding of fact which need not be disturbed, as it has been sought to, in the cross-appeal. Whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property. The failure of the plea has obvious results. If the parties herein were co-owners of that property and the said property had been purchased from the income derived from joint property, then obviously the same has to be accounted for as joint property and not as joint Hindu family property. It was like property jointly purchased by co-owners without attracting the rule of succession by way of survivorship. On this clarification, the judgment of the High Court is cleansed of the little vagueness about this particular which accidentally seems to have crept in while dealing with this aspect of the case.
7. For what we have said above, it is plain that the property in possession of these two branches of the family, sought to be partitioned, was not joint Hindu family property because the three sons obtained it by inheritance from their father, the last elder, and their status was that of tenants-in-common, and if the accretions to the property had been made out of the income of the joint property then these were accountable, as held by the High Court but that aspect would have to be decided before the passing of the final decree.
8. For the foregoing reasons, we dismiss all these three appeals but without any order as to costs.
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