1995 Supreme(SC) 1010

SUPREME COURT OF INDIA
P. PERIASAMI
Versus
P. PERIATHAMBI
Decided on : October 11, 1995

Headnote:

Hindu Succession Act, 1956 – Suit for partition – It was a suit for partition between two branches of the same family. – The properties involved were entirely agricultural. – The facts as depicted in the judgment of the High court are so interwoven with so many details that we have thought it expedient to resort to tremendous shrinking. – For our purpose, we condense them to say, sufficedly, that there was an elder, high in the line, who owned these properties. – These were self-acquired. – When he died years ago, he left behind three sons. – He had by then no grandsons born from the loins of those three sons. The property on his death thus came in possession of the three sons. – When eventually sons were born to those sons and thereafter grandsons, there came a day when they sought to effect a partition. – In this spell of time certain properties allegedly stood purchased out of the income derived from those properties and they were also brought in, being within the nucleus and hence claimed to be partible. – It is in this manner that the dispute was spread within the two branches of the family representing lines of two brothers. – The plaintiffs claimed partition on the basis that the properties received from the family elder and the accretions made thereto from the income derived from the said property, were both joint Hindu family properties and out of which they were entitled to their defined shares. – On the other hand, the defendants joined issue with the plaintiffs, onthe question of the descended properties being joint Hindu family properties, taking the plea that the properties had come from the elder to his three sons by way of inheritance and not on the basis of survivorship. – The assumption that those three sons and the elder were members of a joint Hindu family was refuted. – As a consequence, it was pleaded that the so-called accretion to the properties could not be related to the nucleus factually, as also because unless it could be proved that the nucleus was owned by the joint Hindu family, the accretions could not partake the same character. – Further, it was pleaded that these accretions were personal accumulations of the defendants and in case it was not so proved, they were in adverse possession thereof, for which they sought a declaration. – This in nutshell is the dispute which is before us; other disputes having been settled in the courts below and others not being put to challenge before us– Held, There is a reference in the judgment under appeal relating to some accounting; after recording the finding that the defendants have failed to prove that that property was in their adverse possession. – This is a finding of fact which need not be disturbed, as it has been sought to, in the cross-appeal. Whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property. – The failure of the plea has obvious results. – If the parties herein were co-owners of that property and the said property had been purchased from the income derived from joint property, then obviously the same has to be accounted for as joint property and not as joint Hindu family property. – It was like property jointly purchased by co-owners without attracting the rule of succession by way of survivorship. – On this clarification, the judgment of the High court is cleansed of the little vagueness about this particular which accidentally seems to have crept in while dealing with this aspect of the case – It is plain that the property in possession of these two branches of the family, sought to be partitioned, was not joint Hindu family property because the three sons obtained it by inheritance from their father, the last elder, and their status was that of tenants-in-common, and if the accretions to the property had been made out of the income of the joint properly then these were accountable, as held by the High court but that aspect would have to be decided before the passing of the final decree– Appeals Dismissed