DEVAGYA TUKLYA MARATHE Vs. SHIVGYA IGYA MARATHE

JUDGEMENT

(1.) The suit out of which this second appeal arises was instituted by the plaintiffs for partition and separate possession of their share in the properties of the joint Hindu family, consisting of the plaintiffs and the defendants. Plaintiffs 1 to 4 are the children of defendant-3. Plaintiff-6 is the mother of plaintiffs 1 to 4 and wife of defendant-3. Defendants 1 and 2 are the brothers of defendant-3. The plaintiffs brought the above suit on the allegation that the parties to the suit constituted a joint Hindu family and that the plaintiffs were entitled to claim partition of their shares in the property. Defendants 1 and 2 inter alia, pleaded that defendant-3 was not a member of their family as he had been given away in adoption to one Dhanu Mharrate and that the suit should even otherwise fail on the ground that the sons of defendant-3 could not file a suit for partition without the consent of defendant-3 when defendant-3 continued to remain joint with his brothers defendants 1 and 2. It is unnecessary to refer to the several other allegations made in the written statement of defendants 1 and 2. The trial Court after recording the evidence and hearing the parties, dismissed the suit. One of the grounds relied upon by the trial Court in support of its decision was that the suit was not maintainable in view of the decision of the High Court of Bombay in Appaji Narhar Kulkarni v. Ramachandra Ravji Kulkarni, ILR 16 Bom. 29, in which it was held that under Mithakshara Law a son could not in the life time of his father sue his father and uncles for a partition of the joint family properties and for possession of his (share therein when the father was not assenting thereto. Against the decision of the trial Court, the plaintiffs appealed to the lower appellate Court. The lower appellate Court dismissed the appeal on the sole ground that it was not maintainable in view of the ruling in Appaji's case (1) referred to above. Aggrieved by the judgment and decree of the lower appellate Court, the plaintiffs have filed this second appeal. After hearing the Counsel for the parties, Bhimiah, J. before whom the above appeal came up for hearing earlier, referred the appeal to a Division Bench under S.8(2) of the Mysore High Court Act by his order dated 13-4-1972 since he considered the question of law involved in this case was of considerable importance.

(2.) Sri T.S.Ramachandra, the learned Counsel for the appellants, at the outset submitted that the decision of the lower appellate Court which rested solely on the decision in Appaji's case(1), was erroneous. He contended that the said decision was based on an incorrect understanding of the relevant text of Mithakshara Law, and, therefore, the correctness of the said decision required to be re-examined. He brought to our notice the decisions of other High Courts, to which reference would be made at a later stage, in which a contrary view had been taken. It was further submitted that in view of the decision of the Supreme Court in Putlarangamma v. M.S.Ranganna, AIR 1968 SC 1018, the view expressed in Appaji's case(1), should be treated as having been impliedly overruled. Sri A.V. Albal, the learned Counsel for the respondents, however contended that the decision of the High Court of Bombay which had held the field for a very long time should not be brushed aside unless there were compelling reasons to do so. Since it is not disputed that apart from the High Court of Bombay, no other High Court has taken the view that a son is not entitled to ask for partition during the life time of his father, without his father's consent against his father and uncles and that in the four other integrating areas of the new State of Mysore the prevailing view of law is contrary to the view of the Bombay High Court, we have considered it necessary and desirable to re-examine the question afresh without being tied down by the rule of stare decisis.

(3.) On an examination of the textual law and the several decisions bearing on the question, the Supreme Court held in Puttarangamma's case (2), that the correct legal position was that in the case of a member ox a joint Hindu family subject to Mitakshara Law, severance in status was effected by an unequivocal declaration on the part of one of the coparceners of his intention to hold his share of the joint family properties separately and that the consent of other coparceners was not necessary to bring about the division in status. We have, therefore, to examine in this case whether the above rule is in any way modified in the case of a son seeking partition from his father and father's brothers or father's nephews without the consent of the father.