MT RAM DEI Vs. MTGYARSI

JUDGEMENT

(1.) I have read the judgment of my learned brother, Kaul and agree with the answers proposed to be given by him. I only wish to add that, to my mind, the texts of the Mitakshara leave no doubt that the sons have a right by birth both in the self-acquired as well as in the ancestral property of the father. In the Mitakshara part II, chap. I, Section 1 (3) heritage is divided into two classes, unobstructed and obstructed, (apratibandha) and (sapratibandha). The wealth of the father or of the parternal grand-father is declared to be apratibandha in which the sons or grandsons get a right by birth. Again in the same chapter, Section 1 (27) it is laid down that "It is a settled point, that property in the paternal or ancestral estate is by birth." In the ancestral joint family property the father has the right to make a transfer for legal necessity and for payment of his antecedent debts which are not tainted with immorality (avyavaharik). In the self-acquired property the texts provide that as the property has been acquired by the father he has got greater rights of transfer in the same, and that being so it follows that if partition is claimed in the life. time of the father, no share can be claimed by the separating sons and grandsons in the self-acquired property of the father.

(2.) If the father dies as a member of a joint Hindu family with his sons and grandsons, leaving self-acquired and ancestral property, the property in the hands of the sons and grandsons in which they have acquired interest by birth is joint family property, and they must hold it as joint owners without specification of shares. If the sons and grandsons have already separated in the lifetime of the father, then there being no joint family, the paternal estate that is inherited by them can be held by them only as co-owners. If the father was joint with some of his sons and grandsons and separated from the 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 can, therefore, be no question of his separated sons or grandsons getting a share in the same. I respectfully agree on this point with the majority decision in Ganesh Prasad V/s. Hazari Lal and Ors. A.I.R. (29) 1942 ALL. 201 F.B. Kaul, J.

(3.) The following two questions have been referred by a Division Bench to a Full Bench: 1. Do all the incidents attaching to coparcenary property attach to the self-acquired property of a Hindu father which his sons, who were joint with him, get on his death, or do they obtain that property only as joint tenants with the right of survivorship inter se, but with none of the other incidents of coparcenership?, and 2, When there are two or more sons of the person who acquired the property, what are the rights of the descendants of each son vis a vis the other's son or sons in the said property so long as the family continues joint?