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1927 Supreme(SC) 65
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
VISCOUNT DUNEDIN, LORD SHAW, LORD SINHA, SIR JOHN WALLIS, AND SIR LANCELOT SANDERSON.
MUKUND DHARMAN BHOIR - Appellant
Versus
BALKRISHNA PADMANJI - Respondents
On appeal from the High Court of Judicature at Bombay.
Decided On : July. 18. 1927.
Solicitors for appellants: T. L. Wilson & Co.
Solicitors for respondents Nos. 3 and 4: Ranken Ford & Chester.
A document executed on the mistaken belief that joint family property is self-acquired does not constitute a separation of status or a partition of the joint estate, as it lacks the necessary unequivocal intention to sever jointness.
Headnote:(A) Hindu Law - Partition - Separation of status versus partition of estate - Separation involves the severance of the status of jointness, which is a matter of individual volition and must be clearly and unequivocally expressed by explicit declaration or conduct - Partition involves the actual allotment of shares of the joint estate, which may be effected by different methods.
(B) Release of interest in joint family property - A document executed on the mistaken premise that joint family property is self-acquired property and that no joint family exists does not operate as a separation of status or a partition of the joint family estate.
Facts of the case:
A suit was instituted for the partition of joint Hindu family property. A document had been executed by the father of one of the claimants, stating that neither he nor his heirs had any interest in the property and that another member of the family was the full owner. It was found that the document was executed under the conviction that the estate was the self-acquisition of other family members and not ancestral property, and that the father had no interest in it by birth.
Findings of Court:
The court found that the document did not operate as a separation of status or a partition of joint family property because it proceeded on the basis that there was no joint family and no joint family property, treating the estate as separately acquired.
Issues: Whether a deed executed on the basis that property was self-acquired, rather than joint, could be construed as a separation of status or a partition of joint family property.
Ratio Decidendi: For a separation of status to occur, there must be a clear and unequivocal expression of intention to sever jointness. A deed that denies the existence of a joint family and treats joint property as self-acquired cannot be interpreted as an intention to partition joint family property or sever joint status, as the parties were not proceeding on the basis of a division of joint family property.
Result: Appeal dismissed with costs.
Legal Category Hierarchy
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family law
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hindu law
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joint family property
- partition and separation
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joint family property
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hindu law
Judgement
Appeal (No. 117 of 1925) from a decree of the High Court (October 4, 1922) varying a decree of the Subordinate Judge of Thana (December 21, 1920).
The suit was instituted by the first respondent for partition of the property of a joint Hindu family of which he claimed to be a member.
The facts appear from the judgment of the Judicial Committee.
Law. Rep. 54 Ind. App. 413 ( 1926- 1927) Mukund Dharman Bhoir V. Balkrishna Padmanji
195
Upon the issues framed both Courts in India found concurrently that the property, with the exception of certain part with regard to which there was no further dispute, was joint and not self-acquired property, and that there had not been, as was alleged, a partition in 1891. The sole question arising upon the appeal was as to the validity and effect of a document executed in 1907 by Padman, the plaintiffs father. He was a defendant, but died before the trial. The document, the terms of which appear more fully from the present judgment, stated that neither Padman nor his heir had any interest in the property, and that Padmans brother Mukund (the first appellant) was full owner, except as to portions given to Padman by his father and by Mukund. The joint family after Padmans death consisted of Mukund and his three sons and the two sons of Padman.
Both Courts held that the document was not binding upon the sons of Padman. They differed however as to its effect; the trial judge held that it operated only for the benefit of Mukunds branch, whereas the High Court held that if it was operative at all it enured for the benefit of all the coparceners.
Dealing with the above question Pratt J. said " Padman having renounced his one-sixth share, the Subordinate Judge has taken the shares of his sons as being still one-sixth each. But this is opposed to the ruling of the Court that where an undivided coparcener renounces his share, that renunciation is not for the sole benefit of the coparcener to whom he renounces it, but for the benefit of the coparcenary see a similar case in Wasantrao v. Anandrao . (( 1904) 6 Bom. L. R. 925; affirmed by the Privy Council ( 1907) 9 Bom. L. R. 595.) . . . . We therefore think that the one-sixth share of Padman must be treated as having sunk into the whole coparcenary, and that the plaintiff and his brother are each entitled to half the share between them, so that the share of each will be one-fourth." With regard to the position of the present respondents Nos. 3 and 4, who were vendees of interests in the share of respectively Padmans sons, and of Padman, and had been joined during the suit, the learned judge said that they had a right to come in and take their shares in the partition upon payment of the Court fee.
Marten J. delivered judgment to the same effect upon the assumption that the document was binding upon Padman himself, which question it was not necessary to determine.
1927. June 27, 28. De Gruyther K.C. and Parikh for the appellants.
Sir George Lowndes K.C, and E. B. Raikes for respondents Nos. 3 and 4.
The other respondents did not appear.
July 18. The judgment of their Lordships was delivered by
SIR LANCELOT SANDERSON. This is an appeal by Mukund Dharman Bhoir, Govind M. Bhoir, Ramchandra M. Bhoir and Harishchandra M. Bhoir, who were defendants Nos. 1 to 4 in the suit, against a judgment and decree of the High Court of Bombay dated October 4, 1922.
The suit was brought by Balkrishna against the above mentioned first four defendants, Padman, defendant No. 5, who was the plaintiffs father, Malji, defendant No. 6, the plaintiffs brother, Sowari, defendant No. 7, the sister of Padman, and other defendants, whom it is not necessary to mention in detail. Krisnaji Ramchandra Lele and Jagunnath Raghunath Shet were added as defendants subsequently.
Krisnaji had purchased from the plaintiffs, after the institution of the suit, a 20-pie share of the plaintiffs share in the property which was the subject-matter of the suit. Jagunnath had purchased
Law. Rep. 54 In
