Allahabad High Court
Baldeo Das vs Sham Lal on 26 August, 1875
Equivalent citations: (1875)ILR 1ALL77
JUDGMENT Oldfield, J.
1. The decree of the Court of First Instance should, in my opinion, be restored.
2. A son, no doubt, takes by birth a vested interest in immoveable ancestral property, and there is authority for considering that his interest in the father's lifetime, and before partition, is a present interest of a proprietary and coparcenary nature--(Mitakshara, ch. i, Section 1 and Section 5); and the power to enforce partition of the ancestral estate implies such an interest, looking to the definition of partition given in Mitakshara, ch. i, Section 1, para. 4, and ch. i, Section 1, para. 23. But oven assuming such ownership on the part of the son, yet until partition takes place, or until the death of the father, natural or civil, the father, by reason of his paternal relation, and his position as head of the family, and its manager, is entitled to make lawful disposition of the property in the interest of the family. This is shown by ch. i, Section 5, paras. 9 and 10, Mitakshara, which, by marking the extent of the son's power of interference in the father's disposition of the property, shows that the power of disposition within certain limits is centred in the father. The son's enjoyment of the property is subject to the dispositions lawfully made by the father, and, if dissatisfied, the son's remedy will lie in any right ho may possess to enforce partition of the estate.
3. In this case there has been no illegal disposition of the property on the part of the father. It appears that the defendant objects to live with his mother-in-law, and insists on occupying part of a house which used to he rented, and which his father desires to dispose of in the way he considers most advisable.
4. I would decree the appeal and decree the claim, but, looking to the relationship subsisting between the parties, they should bear their own costs in all Courts.
Turner, Officiating C.J.
5. I concur in decreeing the appeal. Sons who are members of an undivided Hindu family acquire by birth an interest in the paternal as well as the ancestral estate, and are enttled in certain events to interfere to prevent waste or to enforce partition in the lifetime and without the consent of their father; but, while their interest is proprietary, it lacks the incident of dominion. "They have not independent dominion, although they have a proprietary right."--Colebrooke's Digest of Hindu Law, Bk. v, ch. vii, 433, vol. ii, p. 562, 3d ed.