Supreme Court: In a case wherein the appeal was preferred by Appellants 1 and 2 against the decree of the Bombay High Court (‘High Court’), which reversed the decree of the Extra-Joint First Class Sub-Judge of Poona and awarded respondent a decree for partition and possession of a half-share in what were known as “Hadapsar” lands, the 3-Judges Bench of M.C. Mahajan, Chandrasekhara Aiyar*, N.H. Bhagwati, JJ., held that the High Court did not decide as to how Hadapsar lands were allocated and to whose share they fell and there was no conclusion that the properties remained undivided. The Supreme Court held that the reasoning adopted by the High Court was strange and thus, the decree of the Subordinate Judge was restored with costs throughout, payable by respondent to Appellants 1 and 2.
Background
Vijayarangam Mudaliar of Poona, had three sons, Kuppuswami, Damodar and Balakrishna and Appellant 1 was Damodar’s son. Appellant 2 was the son of Damodar’s eldest son, Venkatrao. Kuppuswami died in 1914, and respondent was his son. Balakrishna died in 1927, and his sons were Appellants 3 and 4. Respondent submitted that the three brothers, Kuppuswami, Damodar, and Balakrishna divided their properties, movable, and immovable, in 1909, and there were lists specifying the properties which fell to the share of each brother. But owing to certain events that took place subsequently, the properties in Hadapsar and Pimpalgaon remained, it was alleged, undivided, and respondent in the present suit sought half-share in the same.
Analysis, Law, and Decision
The Trial Judge dismissed respondent’s suit holding that respondent had not proved that the Hadapsar and Pimpalgaon lands were undivided lands of the family, or that he had joint possession with Appellants 1 and 2 of those lands as a tenant-in-common. The High Court, on appeal in regard to Hadapsar properties, passed a decree for partition and possession of one half-share in respondent’s favour. The High Court rested its decision on the view that in prior litigation between the parties there was no finding of division as regards those properties, and that therefore they should be treated as having remained undivided.
The Supreme Court opined that if the records of the prior litigation were examined, it was abundantly clear that there was no such finding, which could be availed of by respondent as a support to his present claim. The Supreme Court observed that the previous suit was filed by respondent himself against Appellant 1 for recovery of the Hadapsar lands on the allegation that he had taken them on lease from him for a period of three years from August 1925 and that Appellant 1 failed to surrender possession on the expiry of the period. In the alternative, respondent claimed recovery of possession on the strength of his title, the allegation being that the lands fell to the share of his branch at the original partition of 1909, followed up by possession and enjoyment. Respondent obtained a decree from the Subordinate Judge, which was reversed in the High Court on an appeal by Appellant 1.
The Supreme Court further observed that the oral lease was held not proved, and it was further found that respondent had failed to establish his case that the Hadapsar properties were allotted to his branch at the original partition, and that he had possession of the same in this right and thus, respondent’s suit was dismissed. The Supreme Court opined that the High Court’s decision made it clear in more than one place that partition of the family properties had taken place in 1909 according to the case of both parties, and that the only question that remained was whether the Hadapsar lands had been allotted to respondent’s branch as respondent had not adduced any satisfactory evidence about the same.
The Supreme Court noted that the High Court stated that “respondent’s evidence to prove his title to the suit lands was far from convincing and the evidence which respondent had adduced to prove that in the partition of lands, Hadapsar lands fell to his share and the Pimpalgaon lands to the share of the appellant was not at all satisfactory”. The Supreme Court opined that the High Court nowhere stated that the Hadapsar lands had remained undivided. The Supreme Court opined that it was no doubt true that the High Court’s decision did not decide how the Hadapsar and Pimpalgaon properties were allocated and to whose share they fell. The Supreme Court further opined that the High Court did not conclude that the Hadapsar properties had remained undivided, which was the basis of the present decree in respondent’s favour and the reasoning adopted by the High Court to reach this conclusion was strange as they had held somehow that they need not concern themselves with the Pimpalgaon properties as they had already been disposed of in partition.
The Supreme Court opined that as appellant got a transfer in his name with the concurrence of respondent of a portion of the Pimpalgaon properties, it was unlikely that appellant had got the entire Hadapsar properties and the fact that he did not go into the witness box in support of his claim was an indication that the Hadapsar properties were, in fact, never divided.
The Supreme Court noted that the counsel for respondent contended that as there was nothing to show that the Hadapsar properties had been divided and thus, the parties must be treated as having been tenants-in-common, and that respondent would be entitled to a half-share on this basis. The Court opined that the contention was unsound for two reasons. Firstly, respondent’s own allegation was not that there was a partial partition but that there was a complete partition, at which the Hadapsar properties fell to his share and thus, the Supreme Court opined that to give effect to respondent’s present claim would be to ignore altogether what he stated previously. Secondly, it was earlier held that respondent did not make out his title, and that the possession of appellant must be presumed to have been in his own right. The Supreme Court opined that it must be remembered that the trial court found that respondent did not prove joint possession with Appellants 1 and 2 of the Hadapsar properties, and this finding had not been upset by the High Court.
The Supreme Court opined that the High Court’s observation that such possession as appellant had of those properties could not be anything more than possession of a tenant-in-common was not based on any discussion of the evidence and took no account of the findings and the appeal and if those findings were to stand, as they must, the claim for partition was obviously untenable. The Supreme Court thus allowed the appeal and restored the decree of the Subordinate Judge with costs throughout, payable by respondent to Appellants 1 and 2.
[Vaman Damodar Moodaliar v. Sriniwas Coopaswami Moodaliar, (1952) 2 SCC 104, decided on 03-10-1952]
*Judgment authored by: Justice Chandrasekhara Aiyar
Note: Partition under Hindu Law
Under the Hindu law, partition means a division of property of a Joint Hindu family in order to give separate conferment of status on the undivided coparceners. Partition has different meanings under Mitakshara and Dayabhaga School of Law. According to Mitakshara School of Law, partition means two things, firstly, partition leads to severance of joint status and secondly, partition means the adjustment into specific shares the diverse rights of different members. Under Mitakshara law, there was division of right and division of property and under Dayabhaga School of law, partition only means the division of the property in accordance with the specific shares of the coparcener. Dayabhaga School of Law was observed in Bengal and Assam, while Mitakshara School of Law was observed in rest of India.
Advocates who appeared in this case :
For the Appellants: Rameshwar Nath, Advocate
For the Respondent: C.K. Daphtary, Senior Advocate (S.B. Jathar, Advocate, with him)
