B. D. Agarwal, J. - (1.) DISPUTE in this appeal lies within a narrow compass. The plaintiff and the defendant no. 2 are brothers, being sons of Jagdish Prasad. The shop in dispute, described at the foot of the plaint, belonged exclusively to Jagdish Prasad. It was his self-acquired property. On July 17, 1941 there was a registered family settlement arrived at to which the plaintiff, the defendant no. 2 and their father Jagdish Prasad were parties. Under this settlement the shop in question was placed in a joint Qura attotted to the father and the plaintiff described as minor under the guardianship of the father. Jagdish Prasad died on May 31, 1976. The defendant no. 1 had been tenant in this shop on rent at the rate of Rs. 215/- per month. The rent has been realised all along by the defendant no.2. The suit giving rise to the appeal was brought on September 23, 1977 by the plaintiff on the allegation that the realisation of rent by the defendant no. 2 from the tenant was unauthorised and that he did so taking advantage of the illness of the father. It is pleaded also that the plaintiff is the exclusive owner of the shop and as such he is entitled to be paid back the amount of rent realised for three years preceding by the defendant no. 2. Accordingly the plaintiff has claimed a decree for Rs. 7,740/-against the defendant no. 2 and also mandatory injunction to direct defendant no. 1 to pay rent to the plaintiff instead.
(2.) IN defence, the defendant no. 2 denied that the title to the shop vests in the plaintiff. It is asserted that the shop was let out to the defendant no. 1 by the defendant no. 2 and the relationship of landlord and tenant exists between them and as such he alone is entitled to realise the rent. It was denied as well that the rent was realised by him taking advantage of the illness of the father. Title to the shop by adverse possession has also been set up by the defendant no. 2. The defendant no. 1 filed a separate written statement contending that he had been tenant for nearly 23 to 24 years preceding and that all along he has had dealing with defendant no. 2 in this respect. The trial court dismissed the suit on August 31, 1978 taking the view that the plaintiff could not establish that the sha e of Jagdish Prasad in the shop had passed to him exclusively upon his death. It was also not made out that there existed relationship of landlord and tenant as between defendant no. 1 and the plaintiff and that the defendant no. 2 had instead been the exclusive landlord. In appeal filed by the plaintiff, the judgment and decree of the trial court have been reversed on April 24, 1979 with the finding that the interest of Jagdish Prasad passed to the plaintiff exclusively by survivorship and that the realisation of rent by the defendant no. 2 was on behalf of the father and the plaintiff. Aggrieved, the defendant no. 2 has preferred this second appeal.
(3.) LEARNED counsel for the appellant contends that the finding recorded by the lower appellate court that it is settled law that a son has a right by birth in the father's self-acquired property and that as a necessary consequence it is to be treated as unobstructed heritage which devolves by survivorship and that in case the self-acquired property has not been disposed of by the father during his life time and if the father was joint with some of his sons and grand-sons and separate from the others then on his death, the undivided sons and grandsons would take the property to the exclusion of the separated sons or grandsons is not correct in the light of the provisions contained in the Hindu Succession Act, 1956. It is not in dispute that this property initially belonged to Jagdish Prasad exclusively that is to say as self-acquired property. The basis of the plaintiff's claim is the family settlement dated July 17, 1941. This is manifest from paragraph 3 of the replication filed by the plaintiff-respondent and also from the statement given by him under Order 10, Rule 2, CPC before the trial court on March 11, 1978. In the family settlement there is clear recital to the effect that the property in question described therein as shop no. 2/16, belonged to Jagdish Prasad alone as his self-acquired property. There is no deviation from this position anywhere on the record from the other side. In the family settlement, referred to above, this property fell to the joint Qura drawn in favour of Jagdish Prasad and his minor son, namely, the plaintiff under the guardianship of the father. Jagdish Prasad died as mentioned above on May 31, 1976. This means, in other words, that as per family settlement arrived at on July 17, 1941, Jagdish Prasad and the plaintiff became co-owners vis-a-vis this property and in face thereof the succession would be governed under section 8 of the Hindu Succession Act alongwith class I of the Schedule to this Act. As provided therein the heirs would be those specified in clause 8 (a) read with class 1 of the Schedule. The learned counsel for the plaintiff-respondent placed reliance on section 6 of the Hindu Succession Act and in particular he referred to the Explanation 2 to this section which states that a person who has separated himself from the co-parcenary before the death of the deceased or any of his heirs cannot lay claim to a share in the interest referred to in that section. The 'interest' referred to in section 6 is clearly the interest in a Mitakshara co-parcenary property. The provision contained in section 6 is to the effect that when a male Hindu dies after the commencement of this Act having at the time of his death an interest in a Mitakshara co-parcenary property, his interest in the property shall devolve by survivorship upon the surviving member of the co-parcener and in that event a separated son is excluded as referred to in Exylanation 2, mentioned above. The basic proposition to attract section 6, therefore, is that the dispute be with respect to interest in a Mitakshara co-parcenary property. In the instant case the shop in dispute was not held as co-parcenary property at any point of time. Prior to the family settlement dated 17th July, 1941, this was the exclusive property of Jagdish Prasad (since dead) and under the family settlement, the basic character of the property is not changed and all that is brought about is that instead of being held by the father alone, the same is placed under the co-ownership of the father and one of his sons. With the partition brought about under this family settlement, there was a severance of the co-parcener and, moreover, since the property in dispute was not held as co-parcenary property at any stage, it cannot be claimed to have acquired that character by virtue merely of the family settlement arrived at. The decisions relied upon by the lower appellate court have also been referred to before me and 1 have carefully considered the same. The cases relate to the position as it obtained prior to the commencement of the Hindu Succession Act, 1956. In C. N. Arunachala Mudaliar v. C. A. Muruganatha Mudaliar, AIR 1953 SC 495 it was observed that, according to the Mitakshara, the son has a right by birth both in his father's and grand-father's estate, but a distinction was made in this respect by the text of the Mitakshara itself. In the ancestral or grand-father's property in the hands of the father, the son had equal right with his father, while in the self acquired property of the father his rights were unequal by reason of the father having an independent power over or pre-dominent interest in the same. In Mst. Ram Dai v. Mst. Gyasi, AIR 1949 Alld. 545 (F. B.) it was held that the self acquired property of a Hindu father which his sons, who were joint with him, got on his death was in their hands joint family property. As between the sons and their descendants, it would have all the incidents of a co-parcenary. It was further observed that if the sons and the grand-sons had already separated in the life time of the father, then there being no joint family, the paternal estate that was inherited by them could be held by them only as co-parceners. If the father was joint with some of his sons and grand-sons and separate from others, the property both self-acquired and ancestral belonged to the joint family of which the father was a member. On the death of the father there could, therefore, be no question of his separated sons or grand-sons getting a share in the same. The decision in Inder Narayan v. Rupnarayan Pandit, AIR 1965 MP 107 also affirmed that under the old Hindu Law, the son got a right by birth in his father's property whether it was ancestral or self-acquired. The significant fact to be taken notice of in relation to the instant case is that herein the controversy has arisen subsequent to the enforcement of the Hindu Succession Act, 1956, and that, as explained above, it is abundantly clear that the interest involved in dispute is not that in a Mitakshara co-parcenary property. Unless there be dispute shown to exist with respect to interest in a Mitakshara co-parcenary property, section 6 cannot have its play. In the absence of the interest of such character being there, the plain provisions relating to succession contained in section 8 will govern and, as submitted rightly for the plaintiff-respondent also, in view of section 4 (1) (a) any text, rule, or interpretation of Hindu Law before the commencement of this Act is to be taken as having ceased to have effect with respect to any matter for which provision has been made in this Act.;