This is a defendant No. 1's second appeal from the decree for partition of the plaintiff's 1/3rd share in S. No. 98/1 of mauza Umerkhed and mesne profits.

2. The relevant facts are as follows: The aforesaid field along with certain other property was the joint family property of Shama of his three sons, Shambhu, Sadashiv and Narayan. Shama died on 22-10-1936. All his sons died before him. Shambhu left a son Ragho, defendant No. 1 to the suit; Sadashiv left a son Kisan, who died in the year 1941, leaving behind his widow Shantabai, the plaintiff to the suit; Narayan left a widow Anjanabai, who is the second defendant to the suit.

3. Shama effected a partition of his property in the year 1934. At that partition the field in question fell to the share of Shama. The question has now arisen as to who are the persons who are entitled to succeed to this field as the heirs of Shama.

4. According to the plaintiff, upon the death of Shama, her husband Kisan, the defendant No. 1 Ragho, and the defendant No. 2 Anjanabai, succeeded to this field as the heirs of Shama. Being the sole heir of Shama the plaintiff claims that she is entitled to one-third interest in this field. It is common ground that this field is in the possession of the defendant No. 1.

5. According to the Courts below, after the death of Shama the plaintiff's husband Kisan and the defendant No. 1 Ragho succeeded to the field as his heirs, that each of them thus had one-half share in the field, that they took their estate as co-tenants and that the plaintiff as the widow of Kisan was entitled to claim one-half share in the field but that as she claimed one-third share she is entitled to a decree for possession of that share and for mesne profits. It may be mentioned that at the stage of arguments a contention was also raised on behalf of the defendant No. 1 that the plaintiff could not enter into a valid marriage with Kisan because she was a daughter's daughter of Shama. Both the Courts below however declined to go into this matter on the ground that there was no pleading on that point.

6. On behalf of the defendant No. 1 it is contended in the first place that Kisan and Ragho, defendant) No. 1, succeeded to Shama's interest as joint tenants, that after the death of Kisan, the defendant No. 1 Ragho, took the entire field by survivorship and that therefore the plaintiff is not entitled to a decree. In support of his contention the learned counsel has relied upon the following passage at page 23, in S. 31 of Mulla's Hindu Law, Eleventh Edition:

“Co-heirs (1) According to the Mitakshara school two or more persons inheriting jointly take as tenants-in-common, except the following four classes of heirs who take as joint tenants with rights of survivorship:

(a) Two or more sons, grandsons, and great-grandsons, succeeding as heirs to the separate or self-acauired property of their paternal ancestor.

7. In support of this proposition the following cases have been cited by Mulla: Raja Jogendra Bhupati Hurri Chundun Mahapatra v. Nityanund Mansingh, 17 Ind App 128 (A); Madivalappa v. Subappa, AIR 1937 Bom 458 (B) and Shyam Behari Singh v. Rameshwar Prasad Sahu, ILR 20 Pat 904 : (AIR 1942 Pat 213) (C).

8. In the first case the question was as to who was entitled to succeed to an impartible estate. The plaintiff's father, Raja Upendra Bhupati, died leaving three sons, Nundkishore, by his Rani Nilmoni Nityanand Maniraj, by a woman called Rambha and a third son, Abhin Roy Singh, by a woman called Asili. After Raja Upendra Bhupati died he was succeeded in the Raj by his legitimate son Nundkishore. Nundkishore died leaving no son, but leaving three widows and a daughter by one of them. Nityanand Manraj (plaintiff) claimed to succeed to Nundkishore on the allegation that his mother was the lawful wife of Upendra. The Courts however found that Upendra and his family were Sudras. On the basis of this finding it was contended on behalf of the plaintiff that after the death of Upendra the plaintiff succeeded to the estate of Upendra along with his legitimate son Nundkishore, and that after the death of Nundkishore, he was entitled, to succeed to the property. While dealing with this matter their Lordships observed:

“In considering who is to succeed on the death of the Raja, the rules which govern the succession to a partible estate are to be looked at, and therefore the question in this case is, what would be the right of succession, supposing instead of being an impartible estate it were a partible one?”

9. In doing so, their Lordships relied on the decision in Sadu v. Baiza and Genu, ILR 4 Bom 37 (D). Their Lordships then quoted certain passages from Mitakshara and observed:

“The learned Chief Justice of the Bombay High Court notices these passages, and after observing that the Mitakshara makes no special provision for the case of the death either of the legitimate or of the illegitimate son after the death of their father and before partition. He says: ‘But the effect of what he has said being, as we think to create a coparcenary between the son of the wedded wife and the son of the female slave, we understand him as tacitly leaving such a case to the ordinary rule of survivorship incidental to a coparcenary, and that accordingly the survivor would take the whole if the other died without leaving male issue’. It appears that in the course of the argument the question was put to the learned counsel by the Chief Justice as to what would be the case if, instead of the legitimate son being the one who had died the illegitimate son had died, and the legitimate son survived: and it was apparently admitted that in such a case the legitimate son would take the share of the illegitimate son by survivorship. If that be so, their Lordships cannot see any reason for holding that the illegitimate son would not take by survivorship in the case of the death of the legitimate son.”

10. Their Lordships also quoted with approval the observations of Mr. Justice Nanabhai Haridas, in the same case to the following effect:

“I would therefore hold that the plaintiff and Mahadu, being male members of an undivided Hindu family, governed by the Mitakshara law, the former (that is the illegitimate son) upon Mahadu's death without male issue, became, entitled to the whole of the immovable property of that family, there being no question about any moveable property in this special appeal.”

11. Their Lordships accordingly accepted the view taken by the Bombay High Court. It will be seen that in the case before their Lordships there was no question of any partition between the Raja and his sons because the property was itself impartible. Moreover the family was undivided. This case cannot therefore be regarded as an authority for the general proposition that in every case of succession, the sons, grandsons and great-grandsons, succeeding as heirs to the separate property of their paternal ancestor take as joint tenants. No doubt, where the family is undivided, the succession of such heirs would be as joint tenants.

12. In AIR 1937 Bom 458 (B) the aforesaid passage from Mulla has been quoted with approval. Applying it to the case before them the learned Judges observed:

“It would follow from this that the property was joint family property in the hands of Ayappa and Doddappa and therefore the sale by Ayappa, who was the manager, was good, and no other member of the family was a necessary party.”

13. This was thus a case where the family was joint. The view of the learned Judges cannot therefore support the general proposition set out by Mulla.

14. In ILR 20 Pat 904 : (AIR 1942 Pat 213) (C) it was held that the self-acquired property of the father is taken by sons, who formed a joint family with the father, as joint family property and is not taken by them as tenants in common. In support of this reliance was placed on the decision in Venkayyamma Garu v. Venkataramanayyamma Bahadur Garu, 29 Ind App 156 (E). This case is also like the other where the property of the family was still joint. In the present case, as already pointed out, the father had separated from his son Narayan and grandson Ragho.

15. Reliance was placed before me on the decision in Gangadhar Narayan v. Ibrahim, ILR 47 Bom 556 : (AIR 1923 Bom 265 (1)) (F) in which it was held that the right of divided sons, grandsons and great-grandsons of the last male owner to succeed to his divided property, is the same as in the case of undivided family property and in support of this the learned Judges quoted the following observations from the decision in Marudayi v. Doraisami Karambian, ILR 30 Mad 348 (G):

“It must however be conceded that to allow a rule of succession per stirpes in a separated family is to admit an exception to the rule of Hindu law by which the inheritance devolves on the nearest Sapinda; but the exception is one which in our opinion necessarily follows from the exposition given by Vijnaneswara of the rights of sons and grandsons in the estate of the grandfather.”

16. The decision in this case does not turn on the nature of the estate taken by several sons and grandsons succeeding as a single heir, and is not very much in point in the present case.

17. Their Lordships of the Judicial Committee pointed out in Bahu Rani v. Rajendra Bakhsh Singh, 60 Ind App 95 : (AIR 1933 PC 72) (H) that the principle of joint tenancy is unknown in Hindu law except in the case of the joint property of an undivided Hindu family governed by the Mitakshara. It is no doubt true that in Venkayamma v. Venkataramanayyamma (E) (citsup) their Lordships have held that where under the Mitakshara law, the two sons of a person's only daughter succeeded on their mother's death to her father's estate, they did so jointly with the benefit of survivorship as to an ancestral estate. In a later case, however, Muhammad Husain Khan v. Kishva Nandan Sahai, 64 Ind App 250 : (AIR 1937 PC 233) (I), their Lordships explained their decision in the aforesaid case, on the ground that in that case the brothers took the estate of their maternal grandfather at the same time and by the same title, as their other property 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 which admittedly governed their other property was held to apply also to the estate which had come to them from their maternal grand-father. In Mayne's Hindu Law at page 651 (Eleventh Edition) it is pointed out:

“As a result of their Lordships' explanation in 64 Ind App 250 : (AIR 1937 PC 233) (I), it must be taken that no new species of coparcenary property in which the male issue have interest, has been engrafted on the Mitakshara law as an exception in Venkayamma's case, but that it was a presumption of fact in that 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 cannot therefore be regarded as laying down any rule of law of course, it will not govern a case where the sons are by different daughters and therefore of different families.”

18. In view of the decision of their Lordships 64 Ind App 250 : (AIR 1937 PC 233) (I) it seems to me that the passage in Mulla's Hindu Law which I have quoted above, in so far as it refers to separated sons, grandsons or great-grandsons does not state the Hindu law accurately, and I am in respectful agreement with the decision in Hari Kishan Dass v. Rajeshwar Parshad, AIR 1952 Punj. 165 (J), wherein it is held that the separate property left by a Hindu father did not become the coparcenary property in the hands of his sons who had separated from him during his lifetime and that after his death each son takes the Property as a tenant-in-common and not as a joint tenant.

19. For the aforesaid reasons, I uphold the view taken by the two Courts below and so ably expressed by Shri Junankar in his appeal judgment.

20. As regards the other point I agree with the two Courts below that it should not be allowed to be raised in the absence of any pleading.

21. Accordingly, I uphold the decree of the lower appellate Court and dismiss the appeal with costs.

V.B.B

Appeal dismissed.