NARAYANA IYER MAHADEVAN Vs. NARAYANA VADHYAR & ORS.

JUDGEMENT

(1.) The questions of law involved in the case on which notice was ordered by the learned single judge are (1) whether the last owner of family property under Hindu Law, holds it as separate property liable to devolution by succession and inheritance by the heirs and not by survivorship as among the collaterals (2) Whether the successors of the last owner in possession hold it as tenants in common liable to separation or partition by metes and bounds

(2.) To understand these questions it is necessary to refer to a few facts. Venkiteswara Wadhyar was the owner of item 1 in plaint schedule. I am not concerned with item 2 in this appeal and therefore I am not referring to it. Though in the appeal memorandum item 2 is also claimed, at the hearing it was not pressed. Venkiteswara Wadhyar had 3 sons Subramonia Wadhyar, Venkiteswara Iyer and Narayana Wadhyar. Subramonia Wadhyar died in the year 1100 M.E. Narayana Wadhyar is the first defendant in the suit. The second defendant is the son of Venkiteswara Iyer. Subramonia Wadhyar died in 1090. He had no male issue. He had only a daughter. Plaintiffs are the children of that daughter. The plaintiffs claim that on the death of Venkiteswara Wadhyar item 1 was inherited by his 3 sons and the share of Subramonia Wadhyar has now fallen to the plaintiffs, the grand children of Subramonia Wadhyar. Besides claiming that Wadhyar obtained a share in the properties by inheritance it is also said that there was a division between Subramonia Wadhyar and his brothers and therefore Subramonia Wadhyar got separate share though not separated by metes and bounds.

(3.) It has been concurrently found by the courts below that item 1 belonged to Venkiteswara Wadhyar at the time of his death. Evidently what is found is that it is not his family property. The property is therefore inherited by heirs. His heirs were the 3 sons. The 3 sons would inherit the property with the incidents of ancestral property. The property would be joint family property in the hands of the sons. (See Para.233 of Mulla's Hindu Law under the head 'ancestral property'). If it is held by the sons as ancestral property or joint family property all the incidents of joint family would attach to the property, one such incident being that of survivorship. Therefore on the death of Subramonia Wadhyar prior to the Hindu Succession Act, 1956 the right in the property would survive to the other coparceners, if so there is no question of succession by female heir, of Subramonia Wadhyar to his share in the properties of Venkiteswara Wadhyar. If so the plaintiff would be out. The courts below have concurrently found that the case of notional partition is not proved and it is not one of the questions on which notice has been ordered. In these circumstances the title of the plaintiffs must be found against. Unless it is that Subramonia Wadhyar had an inheritable right in the property on his death his female heir and consequently the plaintiffs would not get any title. He would have heritable right if he had become divided in status in regard to joint family properties inherited from the father. I say joint family properties only because the character of joint family is impressed on the properties under law on inheritance from the father. In that event the plaintiffs must be non suited.