JUDGMENT Satish Chandra, J.
1. A Division Bench has referred the Second Appeal to a Full Bench to resolve the conflict of opinion in Mahabir Singh v. Bhagwanti, 14 All LJ 278 = (AIR 1916 All 111) and Ram Singh v. Baldeo Prasad, 1932 All LJ 605 = (AIR 1932 All 643).
2. This is a defendant's appeal. It arises out of a suit for partition of a house and a tenancy holding. The plaintiff set up the following pedigree:--
DURGU ___________________|__________________ | | | Munni Chhiddu Chhangey Jhandey Lal | | (Plaintiff) | Mst. Kaushalya | (Widow) ______________________|__________________________ | | | Mst. Rajo Chhotey Lal Ram Singh (Widow) (Defendant) (Defendant (Defendant No. 3) No. 1) No. 2) Munni died on 17-11-1918, leaving a son Jhandey Lal, the plaintiff-respondent. Chhangey died on 10-4-1925. His widow, Smt. Kaushalya died in 1932. Chhiddu died during the pendency of the suit, leaving a widow, Smt. Rajo and two sons, who are defendants-appellants Nos. 1, 2 and 3.
3. The plaintiffs case was that the house as well as the holding in dispute was acquired by Durga. On his death, these properties were inherited by his three sons in equal shares. The sons of Durgu constituted a Joint Hindu Family. The properties were coparcenary properties. On the death of Chhangey, his share went to the other members or the coparcenary by survivorship. Consequently, the plaintiff had a 1/2 share in the house as well as in the tenancy holding.
4. The defence was that the three sons of Durgu were separate. Chhangey's share was inherited by his widow, Smt. Kaushalya. On her death, Chhangey's share went to his brother Chhiddu as the nearest heir. The plaintiff, who was one degree removed, did not inherit Chhangey's 1/3rd share. Consequently, Chhiddu's share was 2/3, while the plaintiff was en-titled only to 1/3rd share, in the properties. The trial Court held that the house as well as the tenancy holding was joint family property, succession to which was governed by the rule of survivorship. The plaintiff was entitled to a half share in both these properties. The suit was decreed for partition of a half share.
5. The defendants went up in appeal, which was dismissed. The defendants then came to this Court in Second Appeal. A learned Single Judge held that the case could not be satisfactorily decided without a clear finding whether the family was joint or separate, and as to when did the family disrupt. This Court remanded the case to the lower appellate Court for decision afresh. On remand, the learned Civil Judge held that the house as well as the disputed holding was acquired by Durgu. On his death, his three sons were members of a Joint Hindu Family. They inherited the house as well as the holding as members of the Joint Hindu Family. The house as well as the holding was ancestral in their hands and it continued to be so upto 15 or 16 years before the institution of the suit. At the time of the disruption of the family in or about 1940, the plaintiff and Chhiddu alone were alive. Hence, each had a half share in the properties. The learned Judge repelled the argument that succession to the tenancy holding would be governed by Section 22 of file N. W. P. Tenancy Act, 1901, on the basis of a decision of this Court in 14 All LJ 278 = (AIR 1916 All 111), where it was held that in case a coparcenary body is the tenant, no individual member thereof can be said to have any interest in the holding which could be inherited in accordance with Section 22 of that Act. On the death of Chhangey, Smt. Kaushalya did not inherit his share; and hence, on, her death, no interest in the holding passed to Chhiddu. On these findings the appeal was dismissed. Aggrieved, the defendants again came to this Court in Second Appeal. At the hearing, a learned Single Judge felt that there was a conflict of views between Mahabir Singh's case, 14 All LJ 278 = (AIR 1916 All 111), mentioned above and Ram Singh's case, 1932 All LJ 605 = (AIR 1932 All 643). He referred the appeal to a Division Bench. The Division Bench in its turn referred the matter to a Full Bench. That is how the appeal has been laid before this Bench.
6. Mr. S. N. Agarwal, learned counsel appearing for the appellants, did not dispute the finding that the holding as well as the house was ancestral, and constituted coparcenary property of the three sons of Durgu. He conceded that so far as the house was concerned, the rule of survivorship would apply, and the plaintiff would have a half share, because at the time of disruption in the family in 1940, the plaintiff and Chhiddu alone were alive. In respect of the tenancy holding, Mr. Agarwal, however, challenged the finding that since the three brothers constituted a coparcenary, the properties inherited by them from their father did not belong to them but vested in the Joint Hindu Family or the coparcenary. He challenged the correctness of the view taken in Mahabir Singh's case, 14 All LJ 278 = (AIR 1910 All 111).
7. In that case, Ram Prasad and his brothers were members of a Joint Hindu Family governed by the Mitakshara. The family owned an occupancy holding. Ram Prasad died leaving a widow and his brothers. The widow granted a lease of the holding to the defendant. The brothers filed a suit to set aside the lease. A Division Bench (Richards, C. if. and Rafiq, J.) held:--
"Ram Prasad was not the 'tenant' of the holding in question, the coparcenary body which made up the joint Hindu family of which he was a member constituted the 'tenant'. The very moment that Ram Prasad died the coparcenary body continued to be the tenant but the body was composed of the survivors of the family. Ram Prasad had no interest which devolved upon anyone."
On this view, it was held that Section 22, N.W.P. Tenancy Act, 1901, which provided that when a tenant dies his interest shall devolve in the way specified in the section, was not applicable. The widow of Ram Prasad did not inherit any interest in the holding. The lease granted by her was invalid. This decision was followed by another Division Bench (Tudball, J. and Sulaiman, J.) in Mindya v. Jhurya (18 All LJ 769). It was observed that there was nothing in the Tenancy Act to prevent a joint Hindu family as such acquiring an occupancy tenure. Section 22 lays down the devolution of the interest of an occupancy tenant when the tenant dies. If one member of a joint Hindu family which has acquired an occupancy tenure dies, the occupancy tenant does not lie and therefore Section 22 does not operate. It was also observed that there was nothing in law before this Act was passed to prevent a joint Hindu family from acquiring occupancy rights. The same view has taken in Acharji Ahir v. Harai Ahir, 1930 All LJ 974 = (AIR 1930 All 822),
8. The tenancy Act defined 'tenant' to be a person who was, or but for a contract, would be liable to pay rent. Obviously, a person who was in law entitled to hold property would be competent to become a tenant within meaning of that Act. The Tenancy Act does not specifically say anything either way on the question whether a Hindu undivided family or coparcenary is a person or is competent to become a tenant.
9. A joint Hindu family or a coparcenary is a creature of Hindu Law. In Mulla's Principles of Hindu law (13th Edition paragraph 214), it has been stated that a coparcenary is purely a creature of law; it cannot be created by act of parties, save in so far that by adoption a stranger may be introduced as a member thereof. The conception of joint Hindu family constituting a coparcenary is that of a common male ancestor with his lineal descendants in the male line within four degrees counting from and inclusive of such ancestor. Thus, it is the common ancestor and the lineal descendants who together constitute a coparcenary.
10. In paragraph 210, Mulla states:--
"The essence of a coparcenary under the Mitakshara law is unity of ownership. The ownership of the coparcenary properly is in the whole body of coparceners. According to the true notion of an undivided family governed by the Mitakshara law, no individual member of that family, whilst it remains undivided, can predicate, of the joint and undivided property, that, he, that particular member, has a definite share, one-third or one-fourth. His interest is fluctuating interest, capable of being enlarged by deaths in the family, and liable to be diminished by births in the family. It is only on a partition that he becomes entitled to a definite share. The most appropriate term to describe the interest of a coparcener in coparcenary property is 'undivided coparcenary interest'.... As observed by the Privy Council Katama Nat-chiar v. Raja of Shivagunga, (1863) 9 Moo Ind App 539, 543 and 611 (PC) 'there is community of interest and unity of possession between all the members of the family, and upon the death of any one of them the others may well take by survivorship that in which they had during the deceased's lifetime a common interest and a common possession'."
11. It is thus clear that the members of the joint family collectively own the coparcenary property. Each member has an interest in such property, though his interest becomes definite on partition. Till then, it is an undivided interest. The view expressed in Mahabir Singh's case, 14 AH LJ 278 = (AIR 1916 All 111) and the other cases mentioned above, that the members were not the tenants of the holding because they had no interest in it, is, with respect, falfacious. In law, the members of the joint Hindu family together become the tenant of the holding. The coparcenary body as such, and as an entity apart from its members, does not own property. The property does not vest in the coparcenary but in its members, though collectively. This view finds support in Maha-virprasad Badridas v. M. S. Yagnik, AIR 1960 Bom 191. Shah, J. (as he then was) held that "the property belonging to a Hindu undivided family is the ownership of the coparceners in that family and that such a family is not a corporation. It is not a judicial entity distinct from the members who constitute it. It cannot sue or be sued in the joint family name and cannot convey the property held by it in its joint character. The coparceners who are members of the Hindu undivided family are undoubtedly owners of the property; but a Hindu undivided family has up independent existence apart from the individuals who constitute the same. Statements sometimes made in decided cases and text books that a Hindu joint family is a "sort of corporation" in dealing with questions relating to enjoyment of the property of the family (see for instance Apaji Narhar Kulkarni v. Ramchandra Ravji Kulkarni, ((1892) ILR 16 Bom 29 at pp. 39 and 78) and Mayne's Hindu Law 11th Edition, Article 243, at page 305) do not justify the view that a Hindu undivided family is a corporation''. His Lordship emphasised that the property is the property of the coparceners who for the time being constitute the Hindu undivided family.
12. Hindu Law does not recognise a joint Hindu family or coparcenary as a juristic personality capable of holding property, as an entity separate from the members of the family. When it is popularly said that a property is joint family or coparcenary property, the true position in law is that the members collectively own it, each having an interest. One of the distinctive features of such "coparcenary property" is in its passing on death of a member. According to Hindu Law, the interest of a dead member passes by survivorship to other existing members of the family. It does not devolve on his personal heirs.
13. Learned counsel for the plaintiff-respondent submitted that if a deity or an idol can hold property, so can a joint Hindu family. The comparison is neither apt nor appropriate. The Hindu Law recognises a deity or idol to have a juristic personality entitling it to hold property. But as seen above, the rules of Hindu Law do not clothe the joint Hindu family with Such a status.
14. It is settled law that rules of personal law are subject to modification by statutory enactments, Kallu v. Sital, 16 All LJ 225 = (AIR 1918 All 294). If a statute provides now the interest of the owner of a particular kind of property will pass on his death, such provision will override and abrogate the rules of personal law in respect of such properties. Section 20 (2) of the Tenancy Act of 1901 provided that the interest of an occupancy tenant was heritable subject to the provisions of that Act. Section 22 of that Act laid down a table of succession. These statutory provisions will prevail and will have the effect of abrogating the rule of Hindu Law on an interest passing by survivorship, in relation to tenancy holdings governed by that Act. In Bhura v. Shahbuddin ((1908) ILR 30 All 128) it was held that the rule of succession laid down in Section 22 of the Tenancy Act was a deliberate departure from personal law and would override the latter. This decision was followed by another Bench in Ali Bakhsh v. Barakatullah ((1912) ILR 34 All 419). It was held that Section 22 is independent and exclusive of the personal law of the deceased tenant. In 1932 All LJ 605 = (AIR 1932 All 643) a Bench observed that the occupancy tenure is a creation of statute and the statute will regulate its devolution. The same view has been taken by the Board of Revenue in several cases, Sri Lal Voika v. Kesho Das (6 UD 433); Somara v. Kesho Prasad Singh (13 SD of 1912: 1 RD 322); and Dharam Das v. Phula Kunwar (5 SD of 1925: 1 RD 508).
15. In law the true position is that on the death of Durgu the three brothers collectively and jointly became the owners of the occupancy holding as well as the house. On the death of Chhangey (on 10th April, 1925) his interest in the holding would, in accordance with Section 22 of the Tenancy Act, devolve on his widow. It would not go to his brother by survivorship.
16. Now what was Chhangey's interest? It is said that a coparcener cannot predicate that his share is one-third or one-fourth. He has a fluctuating interest, capable of being enlarged by deaths and liable to be diminished by births in the family. This principle is integrally linked with the rule of survivorship. When a statute supplants it by rules of succession, the result is that on death of a member, his interest goes to his mentioned heirs. Then ex-hypothesi, the interest of other coparceners will not get enlarged, because nothing passes to them. The necessary corollary is that death, like partition, inevitably makes definite the deceased member's share. At the time of Chhangeys death, there were three members in the family. Chhangey hence had a one-third share.
17. Smt. Kaushalya the widow of Chhangey died in 1932. At that time, Agra Tenancy Act of 1926 was in force. Under Section 25 (1) thereof a brother was a preferential heir to a brother's son. See Dular Pandey v. Nanda Budhai, 1938 All LJ 585 = (AIR 1938 All 396) (FB). Hence Chhiddu would inherit the one-third share till then held by Smt. Kaushalya. In this view, Chhiddu was entitled to a two-third share while the plaintiff had a one-third share in the holding. In regard to the house, the rules of Hindu Law would continue to apply. In accordance with the rule of survivorship, the interest of Chhangey would pass to both the other surviving members of the family, namely Chhiddu and the plaintiff Jhandey Lal. On this basis, they both had a half share in the house.
18. In the result, the appeal succeeds and is allowed in part. The decree is modified. The plaintiff's suit for partition is decreed for a half share in the house and for a one-third share in the tenancy holding. Under the circumstances of the case, the parties will bear their own costs throughout.