1.By means of filing this appeal under section 100 of the Code of Civil Procedure, the appellants have questioned legality of judgement and decree dated October 30, 1979 rendered by the learned Assistant Judge, Ahmedabad (Rural), Narol in Regular Civil Appeal No.61/77, by which decree dated March 07, 1977 passed by the learned Joint Civil Judge (S.D.), Ahmedabad (Rural), Narol in Regular Civil Suit No.385/76, ordering partition of the ancestral properties, is upheld.
2.The substantial question of law formulated by the Court at the time of admitting the Second Appeal, is as under :
"Whether the plaintiff - son is entitled to bring an action for partition of joint family properties without the consent of his father under the Mithakshara Law applicable in this State, notwithstanding the fact that the coparcenery subsists ?" If not, what is the effect ?
3.The above referred to substantial question of law arises for consideration of the Court in the background of following facts:
The deceased respondent No.1, who was original plaintiff, was son of deceased appellant No.1 and brother of appellants No.2 to 7. The name of grand father of the original plaintiff was Mahasukhram, who had two sons by name Atmaram and Jethalal. Deceased Atmaram, who was original defendant No.1, was father of the original plaintiff, whereas Jethalal was his uncle. It was stated by the original plaintiff in the plaint that his grand father had expired earlier and his uncle Jethalal, who was unmarried, died on March 15, 1963 without leaving any heir behind him.It was asserted by him that the original plaintiff and original defendants were the members of the joint Hindu family and the suit properties which were ancestral properties belonged to the said joint family. It was claimed by the original plaintiff that the properties were never partitioned between the parties and though he had demanded his one-ninth share in the properties, he was not given his share by the defendants. Under the circumstances, the deceased plaintiff instituted suit for partition of the properties and separate possession.
4.The suit was contested by the defendants by filing Written Statement at exh.14. In the W.S., it was denied that the properties were ancestral properties of the undivided joint family of the parties. It was claimed that the suit properties were self-acquired properties of the defendants and were not liable to be partitioned. The plea regarding nonjoinder of parties and suit being barred by a period of limitation were also raised. By filing the Written Statement, the defendants demanded dismissal of the suit filed by the respondent No.1.
5.The Trial Court framed Issues for determination at exh.17. The original plaintiff as well as appellants led oral and documentary evidence in support of their respective claims. After taking into consideration the evidence led by the parties and hearing the learned advocates for them, the Trial Court came to the conclusion that the properties shown in para-1 of the plaint were properties of the joint Hindu family, consisting of plaintiff and all the defendants, and were liable to be partitioned. The Trial Court, therefore, decreed the suit by judgement and order dated March 07, 1977 and declared that the original plaintiff had one-ninth share in the suit properties. A Commissioner was also appointed for taking accounts of income of the joint family properties.
6.The preliminary decree for partition came to be challenged by the present appellants before the District Court by filing Regular Civil Appeal No.61/77. The learned Assistant Judge, Ahmedabad (Rural), Narol, by his judgement and order dated October 30, 1979, upheld the decree passed by the Trial Court, giving rise to the present Second Appeal.
7.Mr J.S.Adhyaru, learned counsel appearing for the appellants has contended that the original plaintiff, who was son of deceased appellant No.1, was not entitled to bring an action for partition of joint family properties in the life time of his father without the consent of his father under the Mitakshara law as applicable in this State, as the coparcenery was subsisting at the time when the suit was filed and therefore, the appeal deserves to be allowed. In support of this submission, the learned counsel has placed reliance on the decision rendered by Division Bench of this Court in the case of Aher Hamir Duda v/s Aahir Duda Arjan and others AIR 1978 GUJARAT 10.
8.Mr K.G.Pandit, learned counsel appearing for the heirs of original plaintiff, has submitted that the question formulated by the Court was never argued before the Courts below and therefore, should not be permitted to be agitated for the first time in this appeal. In the alternative, it was pleaded that, as per the decision of the Division Bench, a son is not entitled to ask for partition in the life time of his father without his consent, when the father is not separated from his father or brothers and nephews and as the facts do not indicate that father of the original plaintiff was joint with his father or his brothers or his nephews, the principle laid down by the Division Bench would not be applicable to the facts of the present case and therefore, the appeal should be dismissed.
9.From the evidence on record, it is evident that Mahasukhram was the father of the original defendant No.1, who was father of the plaintiff. Mahasukhram had two sons viz. Atmaram and Jethalal. It is an admitted position that Jethalal was not married and died on March 15, 1963, without leaving any heir, whereas Mahasukhram had died earlier than Jethalal. After death of Mahasukhram, the original defendant No.1 did not separate from deceased Jethalal, but was joint with him and both of them were holding ancestral properties as coparceners. On death of Jethalal, the ancestral properties became properties of the joint Hindu family, consisting of original plaintiff and the defendants. At the time when the suit was filed by the originalplaintiff for partition of the ancestral properties, the original defendant No.1 was not joint either with his father or brother and/or nephews, because his brother had died on March 15, 1963 without leaving any heir, whereas the father had expired earlier than his brother. Before deciding the question whether the principle namely a son is not entitled to ask for partition in the life time of his father without his consent, when the father is not separated from his father or brothers and nephews, is applicable to the facts of the present case or not, it would be advantageous to refer to facts of Aher Hamir Duda's case.
10.In the case of Aher Hamir Duda (supra), the appellant, his father and his uncle constituted Hindu Undivided Joint Family. The father of the appellant had not separated from his brother. The appellant filed suit for partition averring that he was a member of the coparcenary and was entitled to the share in the coparcenary properties. It was asserted by him that the properties were joint family properties and he was entitled to ask for partition by metes and bounds. The action was resisted by his father and uncle on the ground that father of the appellant had not separated from the rest of the family during his life time and therefore, action brought by the appellant as plaintiff was not maintainable. The Trial Court took the view that there was no partition between the father of the plaintiff and his grandfather and therefore, the plaintiff was entitled to one-sixth share in the joint family properties. On that basis, the Trial Court passed preliminary decree for partition. That preliminary decree was assailed in the Court of learned District Judge by the father of the plaintiff. The Appellate Court held that the evidence on record did not justify an inference that the father of the defendant had separated himself from his father about 40 years prior to the suit, as was alleged by the plaintiff. In that view, following the decision of the Full Bench of the Bombay High Court in Apaji Narhar v. Ramchandra Ravji (1892) ILR 16 Bom 29 (FB), the appellate Court allowed the appeal. The original plaintiff thereupon preferred Second Appeal. The learned Single Judge agreed with the findings recorded by the first appellate Court and dismissed the appeal and consequently the suit. However, while dismissing the appeal leave to file Letters Patent Appeal was granted. The Division Bench took into consideration Apaji's case (1892 ILR 16 Bom 29 (FB), wherein it is held by majority that a son is not entitled to ask for a partition in the life time of his father without his consent when the father is not separated from his father or brothers and nephews. The Division Bench which decided the appeal, noted that a categorical finding of fact was recorded that there was no severance of status and father of the plaintiff had not separated from his brother. Under the circumstances, the Division Bench followed the principle laid down in Apaji's case and dismissed the appeal.
11.In my view, the principle laid down in Apaji's case and Aher Duda (supra) would be applicable only if it is proved that father has not separated from his father or brothers or nephews and not given consent enabling his son to claim partition. However, when father of the father and brother of the father have died and father is holding joint family properties with his sons, the right of a son to demand severance of status and for partition of properties by metes and bounds, is not doubted in any judicial pronouncement. A member of a joint Hindu family subject to Mitakshara law, can bring about his separation in status by definite, unequivocal and unilateral declaration of intention to separate himself from the family and enjoy his share in severalty. It is not necessary that there should be an agreement between all the coparceners for the disruption of the joint status. It is also immaterial in such a case whether the other coparceners can assent to the separation or not. As noted earlier, it was never the case of the original defendant No.1 that, at the time when the original plaintiff instituted the suit for partition, he was joint with his father and brother and such a case was obviously not pleaded, for the reason that, before institution of the suit, father of the original defendant No.1 and his brother Jethalal had already expired. As it is not established that the original defendant No.1 was joint with his father or brothers or nephews at the time when the suit was filed, it was not necessary for the original plaintiff to have consent of his father before claiming partition of ancestral properties. Therefore, the principle that a son is not entitled to ask for partition in the life time of his father without his consent when the father is not separated from his father or brothers or nephews, would not be applicable to the facts of the present case and right of the original plaintiff to claim severance of status and partition of the properties cannot be negatived on the ground that, during the life time of his father, he had instituted the suit for partition without his consent.
12.On the facts and in the circumstances of the case, it is held that the original plaintiff was entitled to bring an action for partition of joint family properties without the consent of his father under the Mitakshara Law as applicable in this part of the State, because at the time of institution of the suit, coparcenary was not existing between the original defendant No.1, his father and/or his brother. The substantial question of law is therefore answered in the affirmative and against the appellants.
13.For the foregoing reasons, I do not find any substance in this Second Appeal and the same is therefore liable to be dismissed. The Second Appeal, therefore, fails and is accordingly dismissed. However, there shall be no orders as to costs.
*** *** *** parmar*