Punjab-Haryana High Court
Raghbir Singh vs Dalip Singh And Anr. on 13 February, 2004
Equivalent citations: AIR2004P&H220, AIR 2004 PUNJAB AND HARYANA 220, 2004 (1) HRR 556, 2004 HRR 1 556, (2004) 2 RECCIVR 595, (2004) 2 PUN LR 599, (2004) 2 CURLJ(CCR) 259, (2004) 2 CIVILCOURTC 649, (2004) 1 HINDULR 767
Author: Viney Mittal
Bench: Viney Mittal
JUDGMENT Viney Mittal, J.
1. The plaintiff No. 1 is in appeal.
2. The plaintiffs are the sons of defendant - Dalip Singh. They filed a suit for declaration and for joint possession of 2/3rd share of the suit land. It was claimed that the suit land was coparcenary property and as such the plaintiffs had a share in the same by birth.
3. The suit was contested by the defendant. The factum of the property being coparcenary property was denied. The maintainability of the suit was also challenged.
4. The learned trial Court decreed the suit filed by the plaintiffs.
5. The matter was taken up in appeal. The learned first appellate Court reappraised the entire evidence and on the basis of the law laid down by the various authorities and on the basis of the principles of Hindu Law held that such a suit filed by the plaintiff was not even legally maintainable. It was also held that even if it be taken that the property was coparcenary property since then sons had no right to claim the possession of such a property or seek a declaration during the lifetime of the father.
6. Shri R.N. Moudgil, the learned counsel for the appellant has argued that the property in dispute was coparcenary property and, therefore, the suit filed by the plaintiffs seekingjoint possession could not have been dismissed.
7. I am afraid the aforesaid contention of the learned counsel is contrary to the principles of Hindu Law as are applicable to the State of Punjab.
8. This Court in Sitara Lal v. Shiv Kumar AIR 1986 Punjab and Haryana 112 had observed as follows :
"So far as the impediment to the son in Punjab in claiming partition is concerned, the matter is not res intergra. Two Full Benches i.e. 1917 Punjab Records No. 105: (AIR 1918 Lahore 291 (Hari Kishen v. Chandu Lal) and (Satish Narain v. Deokl Nandan, AIR 1947 Lahore 372 carefully discovered the principle that in Punjab a son is not entitled to ask for partition of the coparcenary property, the manager of which is the father, without the latter's consent. Those are based on the principles of Hindu Law as culled out in various treatises on the subject. However, with regard to the right of the son to have rendition of accounts of the income of the coparcenary property, no precedent of this Court has been brought to my notice by the learned counsel for the petitioner. The plaintiff-respondents despite being served have not put in appearance. In the situation, as at present advised, paras 235 and 237 of Mulla : Principles of Hindu Law seem to me, to govern the issue unmistakably.
"235. Right of Coparceners : (1) Community of interest and unity of possession :--No coparcener is entitled to any special interest in the coparcenary property, nor is he entitled to exclusive possession of any part of the property, As observed by their Lordships of the Privy Council, "there is community of interest and unity of possession between all the members of the family".
(2) Share of Income :-- A member of a joint Mitakshara family cannot predicate at any given moment what his share in the joint family property is. His share becomes defined only when a partition takes palce. As no member, while the family continues Joint, is entitled to any definite share of the joint property, it follows that no member is entitled to any definite share of the income of the property. The whole income of the joint family property must be brought, according to the theory of an undivided family, to the common chest or purse, and dealt with according to the modes of enjoyment by the members of an undivided family.
(2a) Joint possession and enjoyment :--Each coparcener is entitled to joint possession and enjoyment of the family property. If any coparcener is excluded from joint pos-session or enjoyment, he is entitled to enforce his right by a suit. He is not bound to sue for partition.
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237. Manager's power over income :--The manager, as the head of the family, has control over the income and expenditure and he is the custodian of the surplus, if any. So long as he spends the income for the purposes of the family, he is not under the same obligation to economise or save as a paid agent or trustee would be. If he spends more than the other members approve, their remedy is to demand a partition. On the other hand, he is liable to make good to them their shares of all sums which he has misappropriated or which he has spent for purposes other than those in which the joint family was interested."
4. The manager's liability to account on partition would arise only if partition is permissible, but in Punjab, as it seems to me, when partition cannot be enforced against the manager father at the instance of his son, the father's liability to account at the pre-partition stage does not arise. The rights of the members of the coparcenary against him are only confined to what is stated in paras 235 and 237, quoted above. These are further elaborated in para 238 as well, but to which reference instantly is not necessary."
9. In view of the aforesaid position of law, and the impediment against a son in claiming partition of the coparcenary property, the suit filed by the plaintiffs for joint possession was apparently not maintainable. In fact the suit for joint possession is apparent a circuitous method for seeking the partition of the property in the lifetime of the father. This is not permissible.
10. Nothing has been shown that the findings recorded by the learned first appellate Court suffer from any infirmity or are contrary to record in any manner.
11. No question of law, much less any substantial question of law, arises in this appeal.
12. No merit. Dismissed.