- (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, onthe 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 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 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 and Jugmohandas Mangaldas v. Sir Mangaldas Nathubhoy 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 ai law. It is difficult to sec 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 526 survivorship imply the existence of co ownership and of rights of partition enforceable at law and a mere inoral injunction can hardly be the foundation of a legal right. As observed by the Privy council in Rani Sartaj Kuari v. Deoraj Kuari 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 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;