RFA 31/2008 BEFORE THE HON’BLE MR.JUSTICE AMITAVA ROY HON’BLE MR.JUSTICE C.R.SARMA This appeal is directed against the judgment and decree, dated 11.08.2008 and 18 -8-08 respectively passed by the learned Civil Judge, Tinsukia, in Title Suit N o.66/2006. The plaintiff’s suit being dismissed by the learned trial Judge, the plaintiff, as appellant, has come up with this appeal. 2. The plaintiff’s case, in brief, may be stated as below :- The plaintiff is the absolute owner of 1 katha 7‰ lessas of land appertaining to a part of Dag No.1337(New)/458(Old) of periodic patta No.422(Ol d)/1160(New), situated at Tinsukia Town Ekma Khanda-3, Mouza-Tinsukia, and anoth er plot of land measuring 4 kathas 11 lessas, covered by Dag No.1313, 1334, 1338 of periodic patta No.250 situated at Tinsukia Town Ekma Khanda-1, Mouza-Tinsuki a, along with the residential building and the shop houses standing thereon. The residential building and rented premises are covered by Holding No.2343 and 234 3(a) of Tinsukia Municipal Board. The suit property has been fully described in the schedule to the plaint. In order to avoid quarrel, among his sons (defendant Nos.1 to 3), the pl aintiff permitted his sons i.e the defendant Nos.1, 2 and 3 to reside separatel y, since 2000, with the arrangement that the defendant No.1 was allowed to resid e with his family in the first floor while the defendant No.2 was allowed to res ide with his family in the second floor of the building, standing on the suit pr emises. The defendant No.3 was allowed to reside in the house situated at Delhi. The ground part of the said building at Tinsukia was divided into two parts and each of the defendant Nos. 1 and 2 were allotted one part in the ground floor of the building as permissive occupier, to run their businesses, for maintaining their livelihood. But, the defendant No.2, vide order passed in Mutation Case No.1 80/A, got his name mutated in respect of land measuring 3 kathas 9 lessas, cover ed by Dag No.1337 (in part) of P.P.No.1160 and Dag No.1138 (in part) and 1334 of P.P.No.250, which was a part of the suit land as described in Schedule-’A’ to t he plaint and obtained separate Dag Nos.1660, 1661 and 1662 of P.P.No.2142. Simi larly, the defendant No.1 also, vide Mutation case No.475/02, got his name mutat ed in respect of Schedule-’B’ land measuring 2 kathas 18 lessas covered by Dag N os.1334, 1338 of P.P.No.250 and Dag No.1337 of P.P.No.1160. The defendant No.3 t oo, vide Mutation Case No.188(A) of 2005-06, got his name mutated, in respect of land covered under Dag No.1338 (in part) of P.P.No.250 in respect of land measu ring 1 katha 18 lessas as described in Schedule-’C’ to the plaint. According to the plaintiff, after receipt of the notice in the m utation case aforesaid, he raised objection and approached the Circle Officer, w ith a prayer for cancellation of the said mutation order, but the defendant Nos. 1, 2 and 3 managed to get their names mutated and obtained separate pattas and h olding numbers, as aforesaid. It is also averred that the defendant No.2, withou t having right, title and interest over the suit land and without any permission from the Tinsukia Development Authority, started construction of a shed measuri ng 15 ft. x 25 ft. with C.I. Sheet roof and wooden post and completed the same o n 1.11.2006 thereby covering the water tank and the broken pillars of the tank, situated on the third floor of the building, which has been described in Schedul e-’B’ to the plaint. According to the plaintiff, the defendants have no right, title and interest over the suit premises and they are just permissive occupiers. Henc e, the plaintiff instituted the suit for - (i) declaration of right, title and interest over the suit properties; (ii) declaration that the mutation in the name of the defendant Nos. 1, 2 and 3 in respect of Schedule-’A’, ’B’ and ’C’ land and the allotment of new holding number to the defendant No.2 were illegal and liable to be cancelled; (iii) declaration that the construction of shed/structure by the defendant No. 2 on the top of the 3rd floor of the building situated in ’D’ Schedule land was illegal and liable to be demolished; (iv) mandatory injunction with other consequential reliefs restraining the de fendant No.2 from transferring or alienating the ’A’ Schedule property. 3. The defendant No.1, by filing a written statement, stated that h e had no objection, if the mutation, granted in his favour, was cancelled. 4. The defendant Nos. 2 and 3 contested the suit by filing their re spective written statements. Taking the pleas, that the suit was not maintainabl e, that the suit was barred by principles of waiver and estoppel, that the suit was hit by the provisions of Section 154 of the Assam Land Revenue Regulation,18 86 and Section 296 of the Assam Municipal Act, the contesting defendants, in the ir written statements, contended, inter-alia, that the entire suit-property bel onged to a Hindu Undivided Family (for short, HUF) known as M/s Chandulal Gau rishankar of which the plaintiff was the karta and the defendants Nos. 1, 2, 3 and Sri Mangtu Ram Agarwalla were the coparceners in respect of the property bel onging to the said HUF. The contesting defendants further contended that, due to some dispute between the members of the said HUF with regard to the common enjo yment and possession of the HUF properties, the dispute was referred to some med iators namely Sri Ram Nagina Singh (since deceased), Sri Bijoy Kumar Garodia and Sri Arun Kumar Jalan for amicable settlement and that, at the intervention of t he said mediators, the parties arrived at a mutual settlement, followed by a Mem orandum of Understanding (for short, ’MOU’) dated 9.9.2000 (Ext.No.A) and accor dingly, as agreed to by all the coparceners, on the basis of the said Ext.No.A, the HUF property was mutually allotted amongst the coparceners of the said HUF a nd thus, following the said settlement/arrangement, the property, mentioned in S chedule-’A’, was allotted to the defendant No.2, while the property described in Schedule-’B’ and Schedule-’C’ were allotted to the defendants Nos.1 and 3 resp ectively. 5. The answering defendants contended that the plaintiff, despite h aving knowledge about mutation cases, mentioned hereinabove, did not prefer any appeal before the Revenue authority and as such, the plaintiff’s suit for cance llation of mutation, granted in favour of the defendants, was barred by Section 154 of the Assam Land Revenue Regulation,1886. The defendants further averred th at the suit was bad for non-service of notice under Section 80 of the Code of Ci vil Procedure (for short, CPC) and Section 326 of the Assam Municipal Act. In the premises aforesaid, the contesting defendants prayed for dismissa l of the suit. 6. The defendant No.4 i.e the Circle Officer, also submitted a sepa rate written statement contending, therein, that the suit was bad for want of no tice u/s 80 C.P.C. This defendant averred that the mutation was granted in favou r of the defendants in accordance with the provisions of law. 7. Upon the pleadings of the parties, the learned trial Judge frame d the following issues for decision :- (i) Is there any cause of action for the suit? (ii) Is the suit maintainable? (iii) Is the suit properly valued and stamped? (iv) Whether the plaintiff has right, title and interest over the suit land? (v) Whether the mutation order dated 15.10.2004 and partition granted in fav our of the defendant No.2 in respect of the Schedule-’A’ land creating separate dags and patta is illegal and inoperative? (vi) To what relief/or reliefs, the plaintiff is entitled to? (vii) Is the suit property belong to HUF ? 8. In support of his case, the plaintiff examined himself as PW 1 a nd he was cross-examined on behalf of the defendant Nos.2 and 3. The defendants did not examine any witness. 9. By the impugned judgment and order under appeal, the suit filed by the appellant was dismissed resulting in this appeal. 10. We have heard Mr. G. N. Sahewalla, learned senior counsel appear ing on behalf of the appellant and Mr. R. L. Yadav, learned counsel appearing fo r the respondents and perused the record. 11. Mr. Sahewalla , learned senior counsel, assailing the impugned j udgment and order, has submitted that the suit property is the self-acquired pro perty of the plaintiff and that the learned trial Judge committed error by holdi ng the same to be a HUF property and also that the defendants Nos.1, 2 and 3, wh o were the sons of the plaintiff, had acquired right, title and interest in resp ect of the said property by their birth. It is also submitted, on behalf of the appellant, that the suit property was never a HUF property and that, in order to avoid family dispute/quarrel amongst his sons, the appellant had allowed his so ns to enjoy the property separately only for earning their livelihood and that t here was no actual partition of the said property. It is further contended that, even if the property is treated to be a HUF or joint property then also, the de fendants, in view of absence of any partition, in accordance with law, were not entitled to get their names mutated and that the learned trial Judge wrongly dec ided the issue Nos.4 and 7. In support of his contention, Sri Sahewalla, learned senior counsel, for the app ellant, has relied on the following decisions:- (1) Yudhistir Vs Ashok Kumar, (1987) 1 SCC 204, (2) P. N. Venkatasubramania Iyer Vs P.N. Easwara Iyer, AIR 1966 Madras 266, (3) Nani Bai Vs Gita Bai, AIR 1958 SC 706. (4) P. Kaliappa Goundar and others Vs Muthuswamy Mudaliar, AIR 1987 Madras 24. 12. Refuting the said argument, advanced on behalf of the appellant , Mr. R. L. Yadav, learned counsel, appearing for the contesting respondents has submitted that, in view of the admission of the plaintiff, in his cross-exa mination, that the suit land was inherited by him from his father as the only he ir of his deceased father and the plaintiff and his sons, being governed by the Mitakshara school of Hindu law, the defendant Nos.1, 2 and 3, by virtue of their birth as the sons of the plaintiff, acquired right, title and interest in respe ct of the said property, inherited by their father as the surviving heir of thei r deceased grandfather, and thus the said inherited property became a HUF prope rty and consequently the defendants and their father became the coparceners in r espect of the said HUF property. The learned counsel further submitted that, vid e Ext.No.A, which was a document regarding settlement/arrangement of family prop erty, the HUF property was partitioned amongst the copeceners and that the defen dant Nos.1, 2 and 3 obtained their specific share, as mentioned in the said docu ment. It is also submitted that the plaintiff himself, in his cross-examination, admitted that he invited his friend, namely, Ram Nagina Singh (since deceased) and relative Sri B. K. Garodia for settlement of the family property and that as per the said arrangement (somjhota), the properties were allotted to the defend ants by mentioning their respective shares as per Ext.No.A. Mr. Yadav, learned c ounsel further submitted that the Ext.No.A itself, the execution and correctness of which has neither been denied, nor challenged, clearly reveals that respecti ve shares, in respect of the said property were allotted/given to the plaintiff, his sons and Sri Manturam Agarwal and that the recitals in the said Ext.No.A in dicates that the plaintiff and the respondents had amicably partitioned their pr operty, in presence of the witnesses, namely, Sri B. K. Garodia, Ram Nagina Sing h and Sri Arun Kumar Jala aforesaid. Mr. Yadav, learned counsel, appearing for t he contesting respondents, also contended that the suit was bad for want of noti ces under Section 80 of the Code of Civil Procedure and the Section 326 of the A ssam Municipal Act. In support of his contention, the learned counsel has relied on the following decisions:- (1) Hari Shankar Singhania and others Vs Gaur Hari Si nghania and othe rs, (2006) 4 SCC 658, (2) Mallika Datta Roy and others Vs Bidyut Kr. Deb, (2004) 3 GLT 434, (3) Koksing Vs Smt. Deokabai, AIR 1976 SC 634. 13. Having heard the learned counsel for both the parties and perusi ng the materials on record, we find that the short question, involved in this ca se, is whether the suit property was a HUF property and if so, whether the prope rty stood partitioned on the basis of the ’MOU’ dated 9-9-2000 i.e the Ext. No.A , thereby indicating the specific shares of the respondent coparceners ? 14. Admittedly, the plaintiff and his sons are governed by the Mitak shara School of Hindu law. Under the Mitakshara Law, property inherited by a Hin du from his father, father’s father or father’s father’s father is ancestral pro perty as regards his own male issues. Therefore, his son, grand son and great gr and son acquire an interest in such a property from the moment of their birth an d they become coparceners with their paternal ancestor immediately after their b irth. It is pertinent to note that there is distinction between ancestral proper ty, and separate property under the concept of Hindu coparcenery. Property inher ited by a Hindu from his father, father’s father or father’s father’s father is his ancestral property, whereas the property inherited by him from other relatio ns is his separate property. In respect of ancestral property, the sons, grand s ons and great grant sons become joint owners along with the persons inheriting t he property and such right is acquired by birth and this was the essential featu re of ancestral property under the Mitakshara law. However, Section 6 of the Hin du Succession(Amendment) Act,2005 provides that, after the coming into effect of the said Act daughters are also entitled to get the same right in the coparcena ry property as she would have had if she had been a son. 15. Section 8 of the Hindu Succession Act, 1956 has laid general rul es of Succession in the case of males. 8.General rules of succession in the case of males- The propert y of a male Hindu dying intestate shall devolve according to the provisions of t his Chapter- (a) firstly, upon the heirs, being the relatives specified i n class I of the Schedule; (b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule; (c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and (d) lastly, if there is no agnate, then upon the cognates of the deceased. 16. According to the Principles of Hindu Law -by Mulla (Sixteenth Ed ition) page 255- 230 the property acquired in the following manner is separate property:- (1) Obstructed heritage- Property inherited as obstructed herit age (sapratibandha daya), that is, property inherited by a Hindu from a person o ther than his father, father’s father, or father’s father’s father (see 218, 222 and 223 sub(2)]. (2) Gift- A gift of a small portion of ancestral movable made th rough affection by a father to his male issue is his separate property (v) [225] . As to gifts and bequests of separate property by a father to his sons see 223 sub (5). (3) Government grant- Property granted by Government to a member of a joint family is the separate property of the done (w), unless it appears f rom the grant that it was intended for the benefit of the family (x). (4) Property lost to family- Ancestral property lost to the fami ly, and recovered by a member without the assistance of joint family property. S ee 232 below. Property acquired by a father by adverse possession is his separ ate property and not ancestral property (xl). (5) Income of separate property-The income of separate property, and purchases made with such income(y). (6) Share on partition.- Property obtained as his share on part ition by a coparcener who has no male issue. (7) Property held by sole surviving coparcener.- Property held by a sole surviving coparcener, when there is no widow in existence who has powe r to adopt(z). (8) Separate earnings.- Separate earnings of a member of a join t family. (9) Gains of learning.-All acquisitions made by means of learni ng are declared by the Hindu Gains of Learning Act, 1930, to be the separate pro perty of the acquirer. In the case of Yudhistir Vs Ashok Kumar (supra) , the Supreme Co urt referring to the view taken in the case of Commissioner of Wealth Tax, Kanpu r Vs Chander Sen and others reported in AIR 1986 SC 1753 observed- It would be difficult to hold that property developed on a Hind u under Section 8 of the Hindu Succession Act, 1956 would be HUF vis-à-vis his o wn sons. In the case of Chander Sen (supra) one Ranjilal and his son constituted a Hindu undivided family. There was partial partition in the family by which the busine ss was divided between the father and the son and thereafter, it was carried by a partnership consisting of the two. The firm was assessed to income tax as a re gistered firm and the two partners were separately assessed in respect of their share of income. The house property of the family continued to remain joint prop erty. Thereafter, Ranjilal died leaving behind his son Chander Sen and his grand sons i.e the sons of Chander Sen. Chander Sen constituted a joint family with h is sons. The credit balance in the account of late Ranjilal was shown by Chander Sen as his self property in his wealth tax return as well as the income tax ret urn and not in the return filed on behalf of the family. This plea of Sri Chande r Sen was disputed by the Wealth Tax officer and the Income Tax officer. In deci ding the matter, finally, the Supreme Court, held that the sums standing to the credit of Ranjilal belonged to Chander Sen in his individual capacity and not th e joint property. 17. The plaintiff though claimed that he was the absolute owner of t he suit property, being his self acquired property and not a HUF property, faile d to substantiate the said claim by adducing sufficient evidence to show as to h ow or in what manner he had acquired the same as his self acquired property. In his cross-examination, the plaintiff, while deposing as PW 1, clearly stated tha t he was the only son of his father, who came to Assam 80 years ago and establis hed a grocery business and that he did not know when his father had purchased th e said land. He also stated that his father had constructed a two-storied buildi ng, the ground floor of which was R.C.C. He clearly stated that he had inherited the suit land from his father as his sole legal heir. Thus by saying that the s uit land was inherited by him from his deceased father as a surviving male issue , the plaintiff contradicted and negated his plea that the suit property was hi s self acquired property. There is nothing on record to show that the plaintiff had acquired the suit property as his self acquired property. In the present case, the plaintiff acquired the property as the sole surviving heir of his deceased father and not on partition. The property wa s never partitioned determining the shares of the plaintiff and his deceased fat her in respect of the suit property. Had he obtained the property on the basis o f partition, then after the death of his father, the property standing in the cr edit/share of his deceased father would have devolved on him under Section 8 of the Hindu Succession Act, 1956 and in that event, the said inherited property i .e the suit property would have been his self acquired property and not of joint Hindu family. Therefore, the fact of the above referred case and the fact of th e case in hand as well as the mode of acquiring the properties in both the cases being different , the decisions held in the above referred cases do not help th e appellant. 18. Therefore, the plaintiff, who inherited the suit property from his father as the sole legal heir and the plaintiff, being governed by the Mita kshara law, by operation of law and the defendant Nos.1, 2 and 3 also being his sons, acquired equal right in respect of the suit property. Thus, the said defen dants, immediately after their birth, became coparceners of the said HUF propert y. Therefore, we find no force in the contention of the appellant that the suit property is the self-acquired property of the plaintiff and that his sons have n o right, title and interest or share in respect of the same or that the plaintif f had the right, title and interest over the suit property to the exclusion of h is said sons. In view of the above discussion and as admitted by the plaintiff, we have no hesitation in holding that the suit property, having been inherited b y the plaintiff from his father and after the birth of the said sons of the plai ntiff, the plaintiff and his said sons became coparceners of the HUF property i. e the suit property. Therefore, it stood established that the plaintiff had no a bsolute right, title and interest, to the exclusion of his sons, in respect of t he suit property and thus the question raised in issue Nos.4 and 7 stood rightly answered in the negative i.e. against the plaintiff. 19. Though the plaintiff stated that he filed a case before the Circ le Officer for cancellation of the mutation, granted in favour of the defendant Nos.1 to 3, he stated that he did not know the outcome of the proceeding. From t he above, it transpires that the plaintiff had knowledge about the mutation, as far back as in 2000, and his ignorance about the result of the objection raised by him, against the said mutation, indicates that he was not interested to pursu e the matter and thus he allowed the continuance of the effect of the said order . Therefore, it can be gathered that the plaintiff was not interested to take an y positive steps for getting the mutation, granted in 2000, cancelled. As discus sed above, failure of the plaintiff to take appropriate steps for cancellation o f the said mutation, at the appropriate time, leads to the inference that he acc epted the said family arrangement as partition. 20. It is well settled that a coparcener’s right to enjoy his share in the HUF property separately accrues to him only after partition. The ownershi p of a coparcenery property vests in the whole body of the coparcenery. A member of the coparcener is entitled to a definite share only after partition and unti l such partition takes place, their possession and enjoyment of the coparcenery property is common. The person, ordinarily the father or other senior member, wh o manages the property of the joint family is called ’karta’. Till the time the members of the joint family remain undivided, the ’karta’ is entitled to manage the family property. The coparcenery property can be divided on a partition. Eve ry coparcener is entitled to a share upon such partition. On a partition between a father and his sons, each son takes a