JAI PRAKASH Vs. SURENDRA PRAKASH GOEL

JUDGEMENT

(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.

(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.