Bombay High Court
Laldas Narandas vs Motibai on 1 January, 1908
Equivalent citations: (1908)10BOMLR175
JUDGMENT Chandavarkar, J.
1. The Subordinate Judge has found that Narandas and his sons lived and messed together and acquired property jointly and that the property now in dispute formed part of it. This finding is not only supported by unimpeachable evidence on the record, but is accepted as good by the learned pleader for the appellant before us for the purposes of his argument. It is urged that the property so acquired by Narandas and his sons cannot be treated as either ancestral or co-parcenavy because Narandas made a will whereby he bequeathed it to his sons. Now it has, no doubt, been held by this Court in Jugmohandas Mangaldas v. Sir Mcnagaldas Nathubhoy (1888) L.R. R. 10 Bom. 528 that where a Hindu leaves his self-acquired property by a will to his son, the latter takes it as his self-acquired property, and that it should not be treated as ancestral property so as to give to the son's sons a vested interest in it by birth as coparceners of their father. But that decision can have no bearing here. If Narandas and his sons acquired their property by their joint labours and were besides joint in food and worship, they must be regarded as having constituted a joint Hindu family, even though there may have been no nucleus of property which had come down to Narandas from his father or grandfather or great grandfather. For the formation of a coparcenary in Hindu law such a nucleus is not absolutely necessary, provided the persons constituting it stand in the relation of father and son or other relation requisite for a coparcenary system and these persons by living, messing and worshipping together and throwing all the property acquired jointly into one common stock manifest their intention to deal with one another and with outsiders as members of a coparcenary system under the Hindu law. There can be no doubt upon the evidence in the present case that Narandas and his sons did so deal. The question is whether what is called the will of Narandas was sufficient to remove the property from the category of coparcenary property after it had been impressed with the latter character by him and his sons. That question must, in our opinion, be answered in the negative. No doubt, generally speaking, it is open to a coparcener to alienate the whole property with the consent of other coparceners, but he cannot alienate it so as to prejudice the rights of other members of the family. Here the alienation was, it is said, by a will executed by Narandas. But if the property was in its inception joint, Narandas even with the consent of his sons had no right to dispose of it in favour of those very sons so as to deprive a person like the plaintiff of her right to look to it for maintenance in the hands of Narandas' son Ranchhoddas. Where certain property has acquired the character of joint property under Hindu law, it has imposed on it by that law as a consequence of that character certain obligations which cannot be got rid of by the coparceners to the prejudice of the parties in whose favour those obligations are created by the law, by a mere agreement to treat it as the self-acquired property of one of those coparceners.
2. On these grounds we confirm the decree of the Subordinate Judge with costs. In Appeal No. 42 of 1907 we confirm the decree with costs.