Rajasthan High Court

Kanhaiyalal S/O Late Shri Shyola ... vs Shri Ram S/O Late Shri Shyola Alias ... on 1 December, 2022

Bench: Birendra Kumar

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                                        REPORTABLE
      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

         S.B. Civil Miscellaneous Appeal No. 1620/2021

Kanhaiyalal S/o Late Shri Shyola Alias Sheonarain, R/o Village
Badharna, Tehsil Amer, Police Station Vishwakarma, Dist. Jaipur.
                                                                   ----Appellant
                                   Versus
1.     Shri Ram S/o Late Shri Shyola Alias Sheoram, At Present
       R/o Shyam Vihar (B), National Highway 8, Near Pankhudi
       Hotel, Delhi Byepass, Jaipur (Rajasthan.)
2.     Uttam Kumar Sharma S/o Shriram Sharma, At Present
       R/o Village Badharna, Tehsil Amer, District Jaipur, Second
       Address, Shyam Vihar (B), National Highway 8, Near
       Pankhudi Hotel, Delhi Byepass, Jaipur (Rajasthan.)
3.     Tarachand Saini S/o Shri Sohan Lal Saini, R/o Palniche Ki
       Dhani, Ramgarh Mod, Lalwas Ka Bandha, Amer Town,
       Tehsil Amer, Dist. Jaipur (Raj.)
4.     Smt Manju Devi W/o Shri Tarachand Saini, R/o Palniche Ki
       Dhani, Ramgarh Mod, Lalwas Ka Bandha, Amer Town,
       Tehsil Amer, Dist. Jaipur (Raj.)
5.     Deputy Registrar, Amer, Tehsil Amer, Dist. Jaipur (Raj.)
6.     Tehsildar Amer, Tehsil Amer, District Jaipru (Raj.)
                                                                ----Respondents

For Appellant(s) : Mr. Ajeet Kumar Bhandari, Sr. Advocate with Mr. Namo Narayan Sharma Mr. Jeetendra Mishra For Respondent(s) : Mr. Rajendra Prasad, Sr. Advocate with Mr. Abhishek Pareek Mr. Akshay Sharma, AGC Mr. Rahul Agarwal for applicant.



          HON'BLE MR. JUSTICE BIRENDRA KUMAR

Judgment reserved on                           :                   24.11.2022

Judgment pronounced on                         :                   01.12.2022





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1. By the impugned order dated 8.9.2021, prayer of the

plaintiff-appellant, for ad interim injunction was refused by the

learned trial Court.

2. It would be apt to look at the genealogy of the parties and

the date and events prior to the suit to appreciate the nature of

dispute between the parties.

3. One Ladu S/o Jamman died in 1976 leaving behind three

sons; (I) Sheola @ Sheo Narain; (ii) Nathu Ram; and (iii) Om

Prakash. Nathu Ram and Om Prakash brought a suit under the

provisions of the Rajasthan Tenancy Act before revenue court for

declaration that property purchased in the name of Shiv Narain by

Ladu Ram was from the income of joint family funds and as such

was joint family property. Further prayer was that the joint family

property in the name of Ladu Ram and Shiv Narain be divided

amongst three brothers equally and an injunction be issued

restraining the defendant Shiv Narain from dealing with the

property or causing obstruction in enjoyment of the same by the

plaintiffs. The suit was ultimately decreed by judgment dated

22.2.2001 deciding 1/3 share to each of the three brothers in the

suit property. Sheo Narain who was defendant in the suit had died

during the pendency of the suit and his five sons and a widow

were substituted as legal heirs/representatives. Though Sheo

Narain had five daughters also but they were not made party in

the civil suit. The aggrieved party challenged the trial court

judgment in revenue appeal No. 40/2001 under Section 223 of the

Rajasthan Tenancy Act. By the judgment dated 30.8.2005, the

appeal was dismissed, thereafter, the aggrieved defendant

challenged the same in Second Appeal No. 4441/2005 under

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Section 224 of the Rajasthan Tenancy Act and this appeal was also

dismissed on 19.3.2020.

4. Mangli Devi, the widow of Shiv Narain executed a registered

deed of relinquishment dated 30.10.2018 in favour of her one of

the sons Shri Ram, respondent No.1. Shri Ram executed a power

of attorney on 18.11.2020 in favour of his son Uttam Kumar

Sharma, respondent No.2 and Uttam Kumar Sharma sold the

property relinqushed by Mangli Devi to Tara Chand Saini,

respondent No.3 and Manju Devi, respondent No.4 wife of Tara

Chand by two separate registered sale deeds dated 1.1.2021.

5. Sons of late Sheo Narain were Kanhiya Lal (appellants),

Ram Narain, Mohanlal, Shrvanlal and Shriram. Kanhaiyalal brought

the suit wherein prayer for ad interim injunction was refused. In

the civil suit, the prayer was for declaration that the

relinquishment deed, power of attorney and sale deeds referred

above, were null and void, inoperative as such, fit to be cancelled.

6. In the interim application, prayer was for restraining the

defendant respondents, from getting the name of the purchasers

recorded in the revenue records. Further prayer was to restrain

the defendant-respondents from disturbing the peaceful and

cultivating possession and enjoyment of the plaintiff over the suit

land.

7. In the response filed by the respondents, it is stated that in

the civil suit, the plaintiff appellant did not come up with clean

hands and suppressed the status of the suit for partition wherein

plaintiff Kanhaiya Lal was a party. The plaintiff appellant further

suppressed the fact that he had filed a civil suit challenging the

relinquishment deed executed by mother Mangli Devi in favour of

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one of her son Sriram who was defendant No.1 in the suit. In that

suit, the trial court refused to grant any interim protection in

favour of appellant by order dated 9.4.2021. Thereafter Kanhiyalal

got another suit instituted by his son Girdhari challenging original

partition document of the family property dated 21.10.1980 vide

civil suit No. 24/2019. The appellant could not get the order of

temporary injunction in Civil Suit No. 24/2019. Thereafter the

present suit was filed.

8. Learned Senior counsel Mr. A.K.Bhandari submits that it is

unconverted case of the defendant-respondents that the suit

property was a coparcenary property of Joint Hindu Mitakshra

family. After death of Sheo Narain, though widow Mangli Devi had

right in the coparcenary property in view of provisions of Section 6

of the Hindu Succession Act, however unless the property is

partitioned by metes and bounds, the character and status of the

coparcenary property would not change and no coparcener has

right to alienate the coparcenary property. Once the

relinquishment deed in respect of coparcenary property executed

by Mangli in favour of one of the coparcener, was incompetent, the

entire subsequent exercise including execution of sale deed in

favour of strangers is inoperative and ineffective. Learned Senior

Counsel next contends that even if the entire transaction is

assumed to be correct, the legal position would be that a

transferee of the coparcenary interest would not get a particular

property until the property is divided by metes and bounds.

Therefore, joint possession of the plaintiff even on the property

transferred to the stranger to the family, was there, therefore, the

plaintiff had good prima facie case for grant of injunction and

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remedy to the purchaser was to file a civil suit for partition to get

the share of the transferor. Prior to that the transferor cannot

claim exclusive possession. Learned Senior Counsel contends that

the learned court below has not correctly appreciated the legal

position while refusing to grant ad interim injunction. Learned

Senior Counsel has placed strong reliance on the judgment of the

Hon'ble Supreme Court in Controller of Estate Duty, Madras

vs. Alladi Kuppuswamy, 1977 (3) SCC 385 wherein the

Hon'ble Supreme Court considered the incidents of Hindu

coparcenary and observed as follows:

"Thus analysing the ratio of the aforesaid case regarding the incidents of a Hindu coparcenary it would appear-that a Hindu coparcenary has six essential characteristics, namely; (1) that the lineal male descendants up to the third generation acquire an independent right of ownership by birth and not as representing their ancestors; (2) that the members of the coparcenary have the right to work out their rights by demanding partition; (3) that until partition, each member has got ownership extending over the entire property conjointly with the rest and so long as no partition takes place, it is difficult for any coparcener to predicate the share which he might receive; (4) that as a result of such co-ownership the possession and enjoyment of the property is common, (5) that there can be no alienation of the property without the concurrence of the other coparceners unless it be for legal necessity; and (6) that the interest of a deceased member lapses on his death and merges in the coparcenary property. Applying these tests to the interest of a Hindu widow who has been introduced into a coparcenary by virtue of the Act of 1937, we find that, excepting condition No. (1), all other conditions are fully satisfied in case of a Hindu widow succeeding to the interest of her husband in a Hindu coparcenary. In other words, after her husband's death the Hindu widow under the Act of 1937 has got the right to demand partition, she cannot predicate the exact share which she might receive until partition is made, her dominion extends to the

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entire property conjointly with the other members of the coparcenary, her possession and enjoyment is common, the property cannot be alienated without concurrence of all the members of the family,' except for legal necessity, and like other coparceners she has a fluctuating interest in the property which may be increased or decreased by deaths or additions in the family. It is manifest that she cannot fulfil the first condition, because she enters the coparcenary long after she is born and after she is married to her husband and acquires his interest on his death. Thus, short of the first condition, she possesses all the necessary indicia of a coparcenary interest. The fact that before the Act of 1956, she had the characteristic of a widow-estate in her interest in the property does not detract any the less from this position. It must follow as a logical corollary that though a Hindu widow cannot be a coparcener, she has coparcenary interest and she is also a member of the coparcenary by virtue of the rights conferred on her under the Act of 1937."

9. Learned Senior Counsel has relied on the judgment of

Hon'ble Supreme Court in Vineeta Sharma vs. Rakesh Sharma

and Ors. (2020) 9 SCC 1. In Vineeta Sharma (supra), the

Hon'ble Supreme Court was considering the effect of enlargement

of daughters right by amendment of 2005 in Section 6 of the

Hindu Succession Act. In para-71, the Hon'ble Supreme Court

observed as follows:

"71. As per the Mitakshara law, no coparcener has any fixed share. It keeps on fluctuating by birth or by death. It is the said principle of administration of Mitakshara coparcenary carried forward in statutory provisions of Section 6. Even if a coparcener had left behind female heir of Class I or a male claiming through such female Class I heir, there is no disruption of coparcenary by statutory fiction of partition. Fiction is only for ascertaining the share of a deceased coparcener, which would be allotted to him as and when actual partition takes place. The deemed fiction of partition is for that limited purpose. The classic Shastric Hindu law excluded the daughter from being coparcener, which injustice has now been done away with by amending the provisions in consonance with the spirit of the Constitution."

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Learned Senior Counsel submits that in T. Lakshmipathi

and Ors. vs. P. Nithyananda Reddy and Ors. reported in

(2003) 5 SCC 150, the Hon'ble Supreme Court stated the law as

follows:

"The law as to co-owners is well settled. Where any property is held by several co-owners, each co- owner has interest in every inch of the common property, but his interest is qualified and limited by similar interest of the other co-owners. One co- owner cannot take exclusive possession of the property nor commit an act of waste, ouster or illegitimate use, and if he does so he may be restrained by an injunction."

10. Mr. Rajendra Prasad, learned Senior Counsel appearing for

the respondents contends that in none of the judgments aforesaid,

the provisions of Section 14 of the Hindu Succession Act was

under consideration which is applicable herein with full force along

with pre-amended Section 6 of the Act. On conjoint reading of the

two provisions i.e. Section 6 and Section 14 of the Act, it would be

crystal clear that after death of her husband Mangli got absolute

right on the property left by her husband, therefore, she was

competent enough to execute the deed of relinquishment of

property succeeded by her on death of her husband, a coparcner

in favour of one of the sons namely Shriram. Consequently, the

subsequent act of Shriram in respect of the property relinquished

by Mangli Devi in his favour is clearly valid as such the bonafide

purchaser for consideration cannot be restrained by ad interim

injunction. Learned Senior Counsel next contends that the

plaintiff appellant deliberately did not disclose in the civil suit that

in a different proceeding for the same property, a preliminary

decree for partition was already passed and once the share of the

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coparceners is defined, the disruption of the coparcenary takes

place. Learned counsel has placed reliance on Section 321 of the

Mulla's Hindu Law 22nd Edition.

Learned Senior Counsel has placed reliance on the judgment

of the Hon'ble Supreme Court in Gurupad Khandappa Magdum

vs. Hirabai Khandappa Magdum and Ors. reported in AIR 1978

SC 1239 specially on para 13 of the judgment which is being

reproduced below:

"13. In order to ascertain the share of heirs in the property of a deceased coparcener it is necessary in the very nature of things, and as the very first step, to ascertain the share of the deceased in the coparcenary property. For, by doing that alone can one determine the extent of the claimant's share. Explanation 1 to Section 6 resorts to the simple expedient, undoubtedly fictional, that the interest of a Hindu Mita-kshara coparcener "shall be deemed to be" the share in the property that would have been allotted to him if a partition of that property had taken place immediately before his death. What is therefore required to be assumed is that a partition had in fact taken place between the deceased and his coparceners immediately before his death. That assumption, once made, is irrevocable. In other words, the assumption Raving been made once for the purpose of ascertaining the share of the deceased in the coparcenary property, one cannot go back on that assumption and ascertain the share of the heirs without reference to it. The assumption which the statute requires to be made that a partition had in fact taken place must permeate the entire process of ascertainment of the ultimate share of the heirs, through all its stages. To make the assumption at the initial stage for the limited purpose of ascertaining the share of the deceased and then to ignore it for calculating the quantum of the share of the heirs is truly to permit one's imagination to boggle. All the consequences which flow from a real partition have to be logically worked out, which means that the share of the heirs must be ascertained on the basis that they had separated from one another and had received a share in the partition which had taken place during the life time of the deceased. The allotment of this share is not a processual step devised merely for the purpose of working out some other conclusion. It has to be treated and accepted as a concrete reality, something that cannot be recalled just as a share allotted to a coparcener in an actual partition cannot generally be recalled. The inevitable

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corollary of this position is that the heir will get his or her share in the interest which the deceased had in the coparcenary property at the time of his death, in addition to the share which he or she received or must be deemed to have received in the notional partition."

11. Now the questions for consideration are:

(A) had Mangli Devi, after death of her husband, got the suit property as its absolute owner having transferable right?

(B) Did the status of coparcenary disrupted on the date of preliminary decree dated 22.2.2001 and its confirmation in first appeal on 30.8.2005 and finally by dismissal of the second appeal by the judgment dated 19.3.2020, hence bar of incidents of coparcenary property got lifted?

The answer to these two questions would be deciding factor

whether the plaintiff has a prima facie case to get interim

injunction.

12. Prior to 2005 amendment, Section 6 of the Hindu

Succession Act which would be applicable on the date of death of

Shiv Narain in the year 1995, was as follows:

6. Devolution of interest In coparcenary property - When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act:

Provided that, if the deceased had left him surviving a female relative specified in class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship. Explanation 1.--For the purposes of this section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would haw been allotted to him if a partition of the property had taken place immediately

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before his death, irrespective of whether he was entitled to claim partition or not.

Explanation 2.--Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein.

The aforesaid provision was retained with following addition

as sub-section (3) of Section 6 after 2005 amendment:

(3). Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005), his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenery property shall be deemed to have been divided as if a partition had taken place and,―

(a) the daughter is allotted the same share as is allotted to a son;

(b) the share of the pre-deceased son or a pre- deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and

(c) the share of the pre-deceased child of a pre- deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre- deceased son or a pre-deceased daughter, as the case may be .

Explanation.―For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.

13. It is evident and settled by the judicial pronouncements that

on death of a coparcener leaving behind Class-I female heirs, the

interest of the coparcener in the coparcenary property would

devolve by testamentary or intestate succession and not by

survivorship. Section 14 of the Act reads as follows:

14. Property of a female Hindu to be her absolute property.―(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as

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full owner thereof and not as a limited owner. Explanation.―In this sub-section, "property" includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act. (2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.

14. Section 14 explicitly declares the law that a female holds all

property possessed by her whether acquired by her before or after

the commencement of the Act as an absolute owner and not as a

limited owner. However, subject to the qualification mentioned in

sub-section (2) which is not applicable here-in. In Mangal Singh

and Ors. vs. Rattno and Ors. reported in AIR 1967 SC 1786,

a three judges Bench of the Hon'ble Supreme Court stated that

possession means control over the property owned by a female

Hindu though she will not be in actual physical or constructive

possession of that property, provided of course that she has not

parted with her right and is capable of obtaining possession of the

property. The Hon'ble Supreme Court held thus:

"The dispute in the case has arisen, because this section confers the right of full ownership on a Hindu female only in respect of property possessed by her, whether acquired before or after the commencement of the Act; and, in the present case, admittedly, the plaintiff had been dispossessed in the year 1954 and was not able to recover possession from the defendants-appellants until her death in the year 1958. It was urged on behalf of the appellants that, in order to attract the provisions of s. 14(1) of the Act, it must be shown that the female Hindu was either in actual physical possession, or constructive possession of the disputed property. On the other side, it was urged

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that, even if a female Hindu be, in fact, out of actual possession, the property must be held to be possessed by her, if her ownership rights, in that property still exist and, in exercise of those ownership rights. she is capable of obtaining actual possession of it. It appears to us that, on the language used in s. 14(1) of the Act, the latter interpretation must be accepted.

It is significant that the Legislature begins s. 14(1) with the words "any property possessed by a female Hindu" and not "any property in possession of a female Hindu". If the expression used had been "in possession of" instead of "possessed by", the proper interpretation would probably have been to hold that, in order to apply this provision, the property must be such as is either in actual possession of the female Hindu or in her constructive possession. The constructive possession may be through a lessee mortgagee, licensee, etc. The use of the expression "possessed by" instead of the expression "in possession of", in our opinion, was intended to enlarge the meaning of this expression. It is commonly known in English language that a property is said to be possessed by a person if he is its owner, even though he may for the time being, be out of actual possession or even constructive possession. "

15. In Gummalapura Taggina Matada Kotturuswami vs.

Setra Veeravva and Ors. AIR 1959 SC 577, a three judges

Bench of the Hon'ble Supreme Court held as under:

" In the case before us, the essential question for consideration is as to how the words "any property possessed by a female Hindu, whether acquired before or after the commencement of this Act" in section 14 of the Act should be interpreted.

Section 14 refers to property which was either acquired before or after the commencement of the Act and that such property should be possessed by a female Hindu. Reference to property acquired before the commencement of the Act certainly makes the provisions of the section retrospective, but even in such a case the property must be possessed by a female Hindu at the time the Act came into force in order to make the provisions of the section applicable. There is no question in the present case that Veeravva acquired the property of her deceased husband before the commencement of the Act. In order that the provisions of section 14 may apply to the present case it will have to be further established that the property was possessed by her at the time the Act came into force. It was the case of the appellant that the estate of Veerappa was in actual possession of the second defendant and not

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Veeravva at the relevant time. On behalf of the respondent it was urged that the words "possessed by" had a wider meaning than actual physical possession, although physical possession may be included in the expression. In the case of Gaddam Venkayamma v. Gaddam Veerayya MANU/AP/0182/1956 : A.I.R. 1957 A P 280, Viswanatha Sastri, J., with whom Satyanarayana Raju, J., agreed, expressed the opinion that "the word 'possessed' in section 14 refers to possession on the date when the Act came into force. Of course, possession referred to in section 14 need not be actual physical possession or personal occupation of the property by the Hindu female but may be possession in law. The possession of a licensee, lessee or a mortgagee from the female owner or the possession of a guardian or a trustee or an agent of the female owner would be her possession for the purpose of section 14. The word "possessed" is used in section 14 in a broad sense and in the context possess means the state of owning or having in one's hands or power. It includes possession by receipt of rents and profits." The learned Judges expressed the view that even if a trespasser were in possession of the land belonging to a female owner, it might conceivably be regarded as being in possession of the female owner, provided the trespasser had not perfected his title. We do not think that it is necessary in the present case to go to the extent to which the learned Judges went. It is sufficient to say that "possessed" in section 14 is used in a broad sense and in the context means the state of owning or having in one's hand or power. In the case of Gostha Behari v. Haridas Samanta MANU/WB/0147/1957 : AIR1957Cal557 , P. N.

Mookherjee, J., expressed his opinion as to the meaning of the words "any property possessed by a female Hindu" in the following words :-

" The opening words in "property possessed by a female Hindu" obviously mean that to come within the purview of the section the property must be in possession of the female concerned at the date of the commencement of the Act. They clearly contemplate the female's possession when the Act came into force. That possession might have been either actual or constructive or in any form recognised by law, but unless the female Hindu, whose limited estate in the disputed property is claimed to have been transformed into absolute estate under this particular section, was at least in such possession, taking the word "possession" in its widest connotation, when the Act came into force, the section would not apply."

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16. Thus, the legal position would be that on the date of death of

Sheo Narain in the year 1995, there was notional partition of the

coparcenery property. Widow of Sheo Narain also got an intestate

succession along with her sons and daughters and she was in

possession, though constructively over the property left by her

husband and as such was an absolute owner thereof by virtue of

Section 14 of the Act having right to transfer the same in favour of

anyone else.

17. On conjoint reading of the provisions of Section 6 and

Section 14 of the Hindu Succession Act, it is evident that Mangli

Devi had transferable right on the property inherited by her from

her late husband which was property in absolute/full ownership of

Mangli Devi. Her transferable right was not fettered by the

incidents of coparcenery property as claimed by the appellant.

Physical and exclusive possession of Mangli Devi on the property

whereof she was full owner by virtue of Section 14 of the Act was

not necessary to exercise transferable right in respect of that

property. Thus, this point goes against the plaintiff-appellant.

Point No.(B)

18. Moreover, the coparcenery had already disrupted on

expression of desire of one of the coparcner to separate and on

passing of the preliminary decree of partition deciding specific

share of the sharers. Section 321 of Mulla's Hindu Law defines

what is partition. The provision is being reproduced below:

"321. What is partition. - According to the true notion of an undivided Mitakshara family, no individual member of that family, whilst it remains undivided, can predicate of the joint property, or that a particular member, has a certain definite share, one-third or one-forth. Partition, according to that law, consists in a

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numerical division of the property; in other words, it consists in defining the shares of the coparceners in the joint property; an actual division of the property by metes and bounds is not necessary. Once the shares are defined, whether by an agreement between the parties or otherwise, the partition is complete. After the shares are so defined, the parties may divide the property by metes and bounds, or they may continue to live together and enjoy the property in common as before, however, whether they do the one or the other, it affects only the mode of enjoyment, but not the tenure of the property. The property ceases to be joint and immediately the shares are defined, and henceforth, the parties hold the property as tenants-in- common." The family may still continue to possess property jointly despite the separation, unless partition takes place by metes and bounds. In Kalyani v. Narayanan, AIR 1980 SC 1173, a three Judges Bench of the Supreme Court reviewed the case law on the subject and reiterated the principle that :

... a disruption of joint family status by a definite and unequivocal indication to separate implies separation in interest and in right although not immediately followed by a de facto actual division of the subject-matter. This may at any time be claimed by virtue of the separate right. From the time of such disruption, each member holds his aliquot share as tenant-in- common irrespective of whether there is actual division of the properties by metes and bounds. Such would be the position, unless there is proof of reunion as understood in law. It is established law that actual physical division or partition by metes and bounds is not an essential ingredient for the purpose of effecting severance of status. That is really a formality in the process of partition. When there is a severance of the joint family from a particular date, but the properties are not partitioned, the members of the family become tenants in common and would be liable to account for the incomings received by them till the time that a final partition takes place and the properties are in the respective possession of such members. Such coparcener are tenants in the common but cannot be characterized as trustees."

19. Considering the judgment of three Judges Bench in Kalyani

(supra) and the legal position stated in Section 321 of the Mulla's

Hindu Law, it goes without saying that the status of coparcenary

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property had already disrupted before Mangli Devi executed the

deed of relinquishment in respect of her absolute property.

20. Moreover, the disruption of coparcenary and coparcenary

interest was already there when one of the coparcener expressed

his willingness to get the coparcenary property partitioned and he

filed the suit for partition. A preliminary decree was passed in the

suit. The first appeal on question of law and fact was also

dismissed and the second appeal which was maintainable only on