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TMI Blog1949 (10) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... f the daughter, namely, the deceased husband of the plaintiff and defendant 1 and that the two brothers became entitled to and enjoyed the properties as tenants in common and on the death of her husband his moiety devolved upon her. The contesting defendant was defendant 1 whose written statement was adopted by his undivided sons, defendants 2 to 4. He denied that items 7, 10 and 11 of Schedule A belonged to Rama Brahmam. The other items were admitted to have been inherited by the two brothers but it was pleaded that the two brothers inherited them not as tenants in common but as joint tenants with eights of survivorship inter se. Defendant 1 further stated that these properties were enjoyed jointly along with their joint family properties without any distinction and that, therefore, on the death of the plaintiff's husband, defendant 1 became entitled to the entire interest in the properties. It was also pleaded that the plaintiff's rights, even if there be any, were barred by adverse possession of defendant 1. The learned Subordinate Judge held that items 7, 10 and 11 of Schedule A did not form part of Ramabrahmam's estate and that even in respect of items which formed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e decision of the Judicial Committee has become obsolete. Mr. K. V. Venkatasubramaniam the learned counsel for the appellant addressed to us a very learned and exhaustive argument. He covered a very wide ground and incidentally digressed into topics which did not have a direct bearing on the question in issue. We acknowledge the great assistance he has given us, especially by his reference to the original texts and the historical development of the doctrines of Hindu law as expounded in the original texts and as interpreted, modified and abrogated by Judicial decisions. 4. Today it is quite evident that not a little of confusion in understanding the law as found in the original Hindu law texts has been due to an ignorance of Sanskrit words employed to express certain fundamental concepts and to the inevitable infiltration of foreign conceptions consequent on the translation into English adopting a phraseology current in that language. Such confusion is not confined to the domain of law and is to be found in other cultural spheres as well. Words like dharma rasa ananda brahmam which really have no exact equivalents in English were translated into English words which had a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the self-acquired property of Gowri Vallabha their Lordships took up the question : What is the course of succession according to the Hindu law of South of India of such an acquisition, where the family is in other respects an undivided family? They start with the initial assumption affirming in general terms the right of the widow to inherit on the failure of male issue and state that there are certain qualifications of this proposition in favour of widows. According to them the material consideration was the limits of the qualification rather than the limits of the right. The qualification of the widow's right, their Lordships found, depended upon survivorship. If the foundation of a right to take any property by survivorship failed there were no grounds for postponing the widow's right to any superior right of the coparceners in the undivided property. The fact that there was a general state of coparcenership as to the family property was not sufficient. The law of succession would follow the nature of the particular property in dispute. The separate or self-acquired property of one member of a joint family did not survive on his death to the other members of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of the father, the grandfather and perhaps also the great grandfather was in accordance with Hindu law. 8. Swaminadha Pillai v. Thangathanni, 19 Mad. 70, was not a case in which the nature of the property inherited by two brothers from their maternal grandfather was directly in question. There a Hindu who was divided from the rest of his family died without issue and his property passed in succession to his widow and mother. On the death of the latter, the property passed to the three nearest surviving reversioners. On the death of one of them issue-less, his widow claimed a third share of the property. It was held that she was entitled to recover and it would not make a difference whether her husband died divided or undivided from his co-reversioners. The learned Judges followed the ruling in Jasoda Koer v. Sheo Pershad Singh, 17 Cal 33, which according to them laid down the rule that the rule of survivorship does not apply to property taken in the ordinary course of inheritance as distinguished from property in which persons have an interest on birth. In the judgment they use the words obstructed heritage , the current translation of lizfrcU/k nk; but it is interesting to n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pure inheritance is not governed by the rule of survivorship ; it is only property of the other kind, namely, ancestral property in which rights to property are acquired by birth that was governed by that rule. 9. This case went up in appeal to the Privy Council and the decision of the High Court was reversed by the Judicial Committee in Venkayamma v. Venkataramanayamma, 25 Mad. 678: 29 I. A. 156 The learned counsel for the appellant took us through the complete report of the arguments of opposing counsel in the case before the Privy Council, namely, Mr. Mayne and Mr. Jardine. But what really concerns us is the judgment delivered by Lord Lindley. We shall, however, make a reference when necessary to anything in the arguments of counsel which is likely to throw light on the question. 10. After stating that Niladri and Appa Rao, the two brothers, on their mother's death succeeded as the heirs to their grandfather's estate, Lord Lindley poses the following question: What then was the character of the property which they took? and he answers it as follows: In the grandfather's hands it was separately acquired property; In the hands of the grandsons it was ancest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hree instances mentioned by him, the first is a case of members of a joint family who succeed to self-acquired property evidently of their father. But that instance was apparently not found satisfactory, for his Lordship says: It may be that when sons succeed the inheritance as to them is unobstructed. The remaining two instances are when widows and daughters succeed in the absence of male issue. If it were necessary it could be explained that the case of widows and daughters who take a limited estate on an entirely different footing from heirs who are entitled to absolute estates. 12. The decisions in Jasoda Koer v. Sheo Pershad Singh, 17 Cal. 33 and Swaminatha Pillai v. Thangathunni, 19 Mad. 70, which were followed by the High Court are next dealt with and after a brief discussion pronounced to be erroneous. 13. In our opinion, this ruling of the Judicial Committee clearly was based on the principle that property inherited by daughter's sons who were members of an undivided family from their maternal grandfather had the same character and incidents as the other property of the joint family, namely, the paternal ancestral property. Supposing that one of the two brother ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, regard the use of the expression 'ancestral property' as suggested by the learned pleader for the appellant as a mere casual statement, carrying no special significance. In the Hindu law the word 'ancestor' is not used in the wide sense in which it is used in English law as merely equivalent to the propositus and as the co-relative of heir. In Hindu law it is used only as signifying a direct ascendant in the paternal or maternal line, and more technically as signifying the paternal grand-father and his ascendants in the male line. ... The learned Judges also point out that if we are to understand the expression ancestral property in their Lordships' judgment in Venkayamma v. Venkataramanayamma, 25 Mad. 678. 29 I. A. 156 otherwise than in its technical sense according to which it is property in which a son on his birth becomes an equal owner with his father, the result of the ruling will be that a species of joint family property unknown to the Mitakshara would be brought into existence. 14. In Jamna Prasad v. Ram Partap, 29 ALL 667 : 4 A. L. J. 582, the question to be determined was whether property inherited from the maternal grand-father is ancest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in for this rule in the Mitakshara. 16. No reported case was brought to our notice after Jamna Prasad v. Ram Partap, 29 ALL. 667 : 4 A. L. J. 582 in which this question was discussed usefully. Nearly thirty years after the Privy Council had to examine the scope of Venkayama v. Venkataramanayamma, 25 Mad. 678 : 29 I. A. 156 and how far the principle of the decision could be logically applied to solve other problems relating to rights in property inherited from the maternal grandfather. In Muhamad Hussain Khan v. Kishva Nandan Sahai the validity of a will was challenged on the ground that the testator had no authority to dispose of property which he had inherited from his maternal grand-father because it was ancestral property. The question was whether such property was ancestral in the testator's hands in the sense that his son acquired therein an interest by birth jointly with him. Their Lordships found a diversity of judicial opinion upon this question in India and proceeded to deal with it as the matter was of considerable practical importance and it was desirable that it should not be left in a state of uncertainty. Their Lordships decided that the estate inherited by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opinion upon the abstract question of whether the property, which a daughter's son inherits from his maternal grandfather, is ancestral property in the technical sense that his son acquires therein by birth an interest jointly with him. This question was neither raised by the parties nor determined by the Board. It appears that the phrase ancestral property , upon which reliance is placed on behalf of the appellants, was used in its ordinary meaning, namely, property which devolved upon a person from his ancestor, and not in the restricted sense of the Hindu law which imports the idea of the acquisition of interest on birth by a son jointly with his father. Their Lordships then refer to the word used in the original text of the Mitakshara (paithamaha) and take Colebrooke to task for having translated it as ancestral . Whether their Lordships were justified in their criticism of Colebrook's translation or not, it is not for us to say. There is much to be said in his defence and persons interested in the subject can profitably refer to the learned article by Mr. K. V. Venkatasubramaniam in the Hindu Law Quarterly Vol. 1. 17. The learned counsel for the appellant con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oint tenancy is unknown to Hindu law except in the case of the joint property of an undivided Hindu family governed by the Mitakshara law which under that law passes by survivorship. 20. Mr. Bhimasankaram argued that Lord Lindley who delivered the judgment in the Jagampet case, 25 Mad. 678 : 29 I. A. 156 could not be presumed to have decided the question before the Privy council on a point not pressed upon them by Mr. Mayne, counsel for the appellant. On principle we are unable to agree that the decision of a Court should be confined to or should follow the arguments by counsel on either side. Actually, however, we think that Mr. Mayne did contend for the proposition which eventually found favour with their Lordships. He contended that the property in question, which descended at the same time by the same title upon two persons who were members of a joint undivided family, was therefore governed by Hindu law applicable to such cases. He further contended that the mere circumstance that it descended on them as obstructed property should not make any difference. No doubt the conception of ancestral property was not clearly analysed but Mr. Mayne's argument was that property i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s case, 25 Mad 678 : 26 I. A. 159 cannot be regarded as laying down any rule of law. In Edn. 10 of Mulla's Principles of Hindu law, we find the following at p. 246, It is submitted that the decision in the earlier case must be confined to its own facts and it was not necessary there to decide nor was any opinion expressed on the precise question whether the property which a Hindu inherits from his maternal grandfather is ancestral property in the technical sense. Should this question arise hereafter, it will have to be answered in accordance with the decision in the later case. 22. According to the editor of Edn. 8 of Sarkar Sastri's Hindu law the Privy Council have practically disagreed with the decision in the Jaggampet case, 25 Mad. 678 : 26 I. A. 159 (see p. 255). 23. Let us examine the question without reference to case law. According to the Mitakshara, the right of one person in and to the property of another is daya. It is of two kinds : apratibandha and Sapratibandha. The former is where one person acquires rights in another's property even while that other is alive by reason of relationship. In the second case, the existence of the owner is an ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribed as swayarjita or swayamopatha, the son's ownership is dormant and subordinate to the father's. But it is certainly not notional. It is as real as the right of junior members to an impartible estate, which is the property of the joint family, Shibaprasad Singh v. Prayagkumari Debee though the father in the one case and the holder for the time being in the other case has absolute power of disposition and though there is no right of partition. 26. To ascertain the extent of the son's right in and to a particular property belonging to the father, it is absolutely necessary to determine whether that property is paithamaha or swayarjitha. This dichotomous division is fundamental. According to Hindu law (and in this there is no difference between Dayabhaga and Mitakshara) property must be one or the other. This division is not only mutually exclusive; it must also be exhaustive. You cannot leave out a property, as not falling in either category, because, how then will you determine the extent of the son's right in such property? For this reason, the descriptive epithets employed to denote the two kinds of property must be treated as illustrative as having been use ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urvivorship in this sense for, the daughter's sons, whether they be sons by the same daughter or by different daughters, did not possess from the time and by reason of their respective births any interest in the property of their maternal grandfather while he was alive. 29. If according to the Sivaganga case, 9 M. I. A. 539 : 2 W. R. 31, the widow is excluded from inheriting her husband's property only, when such property is taken by survivorship by the other coparceners, then we must hold that the property inherited by her husband from his maternal grandfather is not such property and therefore she is entitled to inherit it in the absence of male issue. 30. We, therefore, hold that the plaintiff's husband and defendant 1 in this case took the property of their maternal grandfather as tenants-in-common and after the death of her husband the plaintiff became entitled to his moiety. 31. The learned advocate for the respondent did not attempt to sustain the plea that even assuming the two brothers took the property as tenants-in-common, by subsequent conduct, it was converted into joint family property. The learned trial Judge found that there was nothing decisive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y house even after her husband's death. It is difficult to follow the remark of the learned Judge that she was staying as a dependent. In our opinion, the facts and circumstances of the case do not warrant the finding of the lower Court that the suit is barred by time. 32. Items 7, 10 and 11 of Schedule A appear to have originally belonged to Ramabrahmam's sister Kammamma. Evidently she only had the limited interest of a widow. She conveyed them to her brother Ramabrahmam under EX. D-4. Ramabrahmam conveyed in turn these properties to the father of defendant 1 and the plaintiff's husband by a deed of sale dated 10th May 1901 Ex. D-4 (a). Subsequently, a reversioner of Kamamma's husband filed a suit (O. S. No. 20 of 1913), in the Temporary sub-Court of Rajahmundry at Coconada against the plaintiffs husband and defendant 1 for recovery of these properties. This suit ended in a compromise decree on 6th February 1914 Ex. D 4 (b). The decree provided that the properties be divided into three shares according to good and bad qualities and one share thereof should be taken by the plaintiff-reversioner and the remaining two shares by defendants 1 and 2 i.e., the plaintif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... following Judgment) : The parties seek directions as regards division of the property between the plaintiff and defendant 1 with reference to that part of property which is in the possession of defendant 5 under a deed of exchange Ex. D 1 dated 4th February 1933. On 2nd July 1929, defendant 1 made a gift of 4 acres of land from the ancestral property to defendant 1, the daughter of the plaintiff, at the time of her marriage. Subsequently, there was a complaint that the lands were scattered in different parts and that lands at one place may be given instead. It was in these circumstances that Ex. D-1 was executed whereby the lands previously gifted were taken back by defendant 1 and 5 acres out of the suit property were given in substitution. The learned Judge has held in Para. 10 that the gift was reasonable and therefore valid. Of course, it can be valid so far as defendant 1 is concerned. But 5 acres of property which belonged both to the plaintiff and defendant 1 had been given in exchange by defendant 1 for property which he had made a gift of under EX. D-1 (a). The plaintiff prayed that in case the exchange was held to be valid, the lands so exchanged might be allotted to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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