NANA TAWKER Vs. RAMACHANDRA TAWKER

JUDGEMENT

(1.) The suit was for a declaration that the plaintiff alone was entitled to execute the decree in Original Suit No. 21 of 1901 on the file of the Subordinate Judge's Court of Tanjore and that the plaintiff was entitled to succeed to items Nos. 2 to 5 of the plaint Schedule. The plaintiff also prayed for possession of item No. 2. The plaintiff and the 1 defendant are the sons of one Jagannatha Tawker, deceased and the 2nd defendant is their mother. The decree in Original Suit No. 20 of 1901 was obtained by Jagannatha Tawker against one Venketesa Bhat and in respect of it, Venketasa Bhat paid Rs. 8,000 into Court. The Subordinate Judge found that the plaintiff and his father Jagannatha Tawker were living together as an undivided family and that the 1 defendant was a divided member, that the sum of Rs. 3,000 deposited in Court was the self-acquisition of Jagannatha Tawker and that, therefere, the plaintiff and 1st defendant were jointly entitled to execute the decree in Original Suit No. 20 of 1901 above mentioned; that the plaintiff alone was entitled to the house item No. 2, but that the 2nd defendant should not be ejected therefrom in her life-time. Against the decree of the Subordinate Judge the plaintiff appealed to the District Court. From the appellate judgment it appears that the only point pressed was that the amount paid into Court by Venketesa Bhat in Origitial Suit No. 21 of 1901 and the house item No. 2 belonged to the plaintiff solely and not to the plaintiff and the 1 defendant jointly. The District Judge found that the said amount and the house were the self acquisition of Jagannatha Tawker and that on his death his sons became entitled to them jointly. It does not appear that any attack was made on the finding of the Subordinate Judge that the plaintiff and Jagannatha Tawker were joint and that the 1st defendant was divided from them. The District Judge appears to have accepted that finding but to have held nevertheless that the undivided son and the divided son were equally entitled to succeed to the father's self-acquisition. The only question for determination in this Second Appeal which is by the plaintiff is whether the District Judge was right in so holding; and the only other fact which need be mentioned is the undisputed fact that the properties in dispute were acquired before the 1 defendant became divided.

(2.) Fakirappa V/s. Yellappa 22 B. 101 seems to be the only reported case in which the present question has been directly dealt with. The contest there was between the united sons and a divided grandson and it was held that the former took in preference to the latter, the property both ancestral and self-acquired left by the grandfather. In that case as in the present case the self-acquired property had been acquired by the grandfather before the division by which one member left the family.

(3.) The only cases in this Court to which our attention has been drawn are Ramappa Naicken V/s. Seethammal 2 M. 182 and Marudayi V/s. Doraisami Karambiar 30 M. 343 the former being cited for appellant and the latter for the respondent. What was actually decided in Ramappa Naicken V/s. Sithammal 2 M. 182 was that when the only surviving heirs to a Hindu father were a divided son and the father's widow, the divided son succeeded to the father's estate in preference to the widow. Ranade J. commenting on this case in Fakirappa V/s. Yellappa 22 B. 101 observes as follows: The judgment, however, shows clearly that if there had been united sons living at the death of the father they would have succeeded in preference to their separated brothers. This comment goes perhaps too far as in the judgment of this Court there is reference to competition only between separated sons and sons born after partition. The case where as here, the conflict is between united sons and separated sons all of whom were, alive at the time of partition is not dealt with though no doubt the result would have been the same. In Marudayi V/s. Doraisami Karambiar 30 M. 343 also the present case did not arise. There the contest was between a divided son and the divided grandsons of the deceased. The only other case relied upon by the respondents vakil is the Sivaganga's Case Katama Natehiar V/s. The Rajah of Shivaganga 9 M.I.A. 539 : 2 W.R. 31 (P.C.). He refers to the remarks at page 609 of the report to the effect thai: self-acquired property, if the acquirer loaves male issue, will descend to that issue and argues that this implies that sons both divided and undivided are entitled to succeed equally to their father's self-acquisition, As was remarked in Fakir appa V/s. Yellappa 22 B. 101 where the same argument was advanced it is clear from the context that the male issue referred to means those sons who were in union with their father at his death. It is thus clear that so far as the reported decisions go there is no authority against the appellant's contention while Fakirappa V/s. Yellappa 22 B. 101 is in his favour. The latter case is referred to in Mayne's Hindu Law Seventh Edition at page 732 and evidently with approval. The learned author remarks upon the case as follows: A grandson sued his grandfather and uncles for partition. He obtained a decree as to all the joint property bat failed as to a part which was held to be the separate property of the grandfather. On the death of the grandfather he brought a fresh suit for a share of this, contending that by descent it had become joint property. This was perfectly true, but the answer to the plaintiff was that he was no longer a member of the co-parcenary. On the grandfather's death his interest in the joint property passed to the remaining coparceners by survivorship. Their own separate property passed to his united sons as heirs and in their hands become an addition to the joint property in which the divided grandson had no interest." The same result would, of course, have followed if the claimant had been a divided son.