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Ram Dei Vs. Gyarsi and Ors.

Keywords- Hindu Succession Act, Coparcenary Rights, Right of Survivorship, Reference Petition, Mitakshara School, Devolution of Property.

                                                       OVERVIEW OF THE CASE

Case NameRam Dei Vs. Gyarsi and Ors.
Equivalent CitationAIR 1949 All545
Date of Judgement8 December 1948
CourtIn the High Court of Allahabad
Case TypeReference Petition
Appellant(s)Ram Dei
Respondent(s)Gyarsi and Ors. 
BenchFull Bench


The concerned reference petition arising out of Allahabad High court (Lucknow Bench) referred from a division bench to a full bench to seek clarification on the self-acquired property of a father and the right of their son therewith in Mitakshara school under Hindu law. It discusses the rights of sons in both self-acquired and ancestral property of their father according to the Mitakshara texts and for seeking the correct lawful stance in the case. 

Section 113 of Civil Procedure Code deals with reference petition where a lower or subordinate court can reach out to a higher court for clarification on a point of law to avoid misinterpretation as happened in this case, as the parties in the case have been to the following courts before the case was referred to the High court for clarification- 

  1. Trial Court 
  2. Additional Civil Court of Lucknow
  3. Avadh Chief Court (on second appeal)


Picture- Genealogical Table

The reference arises from the suit brought by three plaintiffs viz., 1. Mt. Gayarsi, 2. Mangat Ram, 3. Mansa Ram for possession of one room in a house in Lucknow. The case was that Bhawani Din was the owner of the self-acquired property and later formed a joint family with his two sons, Mata Din and Rup Ram. The root of the contention arises from the fact that no grandson was born to Bhawani Din in his life-time and on his death his two sons succeeded to his property including the house. That Mata Din died in 1905, leaving his widow Mt. Ram Dei and a son named Ram Kumar. Rup Ram died in 1906. He left a son Sri Krishna. Sri Krishna died in 1915 leaving his widow Kamlapati. That on 9th September 1940, Ram Kumar transferred the house in question to plaintiffs 1 and 2 by a deed of sale and sometime after the vendees let it out to plaintiff 3. That in March 1941, Mt. Ram Dei, widow of Mata Din, wrongfully took possession of a room in the said house. Accordingly, the three plaintiffs brought against her the suit for possession of that room.

The purchasers claimed that they had acquired the entire house by virtue of the deed of sale. Mata Din and Rup Ram claimed that they had separated from the joint family and that the house was their self-acquired property. The trial court found that the house was the joint family property and that the deed of sale was void. The court also upheld the contention put forward on behalf of Ram Kumar’s widow, Mt. Ram Dei, as regards her right of residence in the house & thus leading to dismissal of the suit. 

On appeal, the learned Additional Civil Judge of Lucknow agreed with the trial court as to the nature of the rights acquired by Mata Din and Rup Ram. He found, however, that the alleged separation between them was not proved. It  accordingly was held that the house in question remained the joint family property throughout, and on the death of Sri Krishna, Ram Kumar, as the sole male survivor of the family, became the owner thereof.

As to Mt. Ram Dei’s claim to her right of residence, the learned Judge held that she had voluntarily relinquished it. The claim was accordingly decreed. Dissatisfied with this decision, Mt. Ram Dei preferred a second appeal in the Avadh Chief Court.


  1. Do all the incidents attaching to coparcenary property attach to the self-acquired property of a Hindu father which his sons, who were joint with him, get on his death, or do they obtain that property only as joint tenants with the right of survivorship inter se, but with none of the other incidents of coparcener ship?


Whether the self-acquired property of a Hindu father, which his sons who were joint with him get on his death, is in their hands joint family property, or whether it is the separate property of each son?

  1.  When there are two or more sons of the person who acquired the property, what are the rights of the descendants of each son vis a vis the other’s son or sons in the said property so long as the family continues joint?


If the answer to the first question is that the self-acquired property of a Hindu father, which his sons who were joint with him get on his death, is in their hands joint family property, what are the rights of the descendants of each son vis-a-vis the other’s son or sons?

  1. Is it possible for separating sons and grandsons to claim a share in the self-acquired property of their father during his lifetime?


  • Obstructed and Un-obstructed Property

According to the Mitakshara texts, heritage is divided into two classes: unobstructed and obstructed (apratibandha and sapratibandha).

Unobstructed heritage refers to the wealth of the father and paternal grandfather, which becomes the property of his sons and grandsons in right of their being his sons and grandsons respectively, and that is an inheritance not liable to obstruction.

The wealth of the father or of the paternal grandfather is declared to be apratibandha in which the sons or grandsons get a right by birth thereby implying that the sons and grandsons have a right to the ancestral property of their father and grandfather by virtue of their birth.

In contrast, obstructed heritage refers to property that devolves on paternal uncles, brothers, and the rest, upon the death of the owner and in default of male issue. The existence of a son and the existence of the owner are impediments to succession, and on their ceasing, the property devolves on the successor in right of his being uncle or brother. This is inheritance subject to obstruction.

  • Settlement of Debt

Can a father transfer his ancestral joint family property to someone else without the consent of his sons and grandsons?

In the ancestral joint family property, the father has the right to make a transfer for legal necessity and for payment of his antecedent debts which are not tainted with immorality (avyavaharik) meaning that the father can sell or transfer the ancestral property for legal reasons or to pay off his debts, but he cannot do so if the debts are immoral.

Although in the self-acquired property, the father has greater rights of transfer as the property has been acquired by him and he can sell or transfer his self-acquired property without the consent of his sons and grandsons.


While answering the reference, many scholars, academics and case laws were cited for better clarification on questions posed and upon consideration and affirmations, the bench opined that-

  1. The self-acquired property of a Hindu father, which his sons who were joint with him get on his death, is in their hands joint family property and remains between the sons and their descendants and subject to all the incidents of coparcenary.
  1. The descendants of each son would vis-a-vis the other’s son or sons have the rights which a member of a joint family has in the coparcenary property.

“It is a settled point, that property in the paternal or ancestral estate is by birth.”  Thus, the ancestral property is inherited by the sons and grandsons by birth and if the father dies as a member of a joint Hindu family with his sons and grandsons, leaving self-acquired and ancestral property, the property in the hands of the sons and grandsons in which they have acquired interest by birth is joint family property, and they must hold it as joint owners without specification of shares. So, if the father dies, the ancestral property becomes the joint property of the sons and grandsons, and they must hold it jointly without specifying their shares. 

  1. In response to the question that if partition is claimed in the lifetime of the father, no share can be claimed by the separating sons and grandsons in the self-acquired property of the father as the self-acquired property has been acquired by the father and he has got greater rights of transfer and disposal of the property. 


When it comes to law of partition, the principles under both the schools sometimes confounds us as happened in this case as it involved a dispute over the ownership of a property that was inherited by the sons of a Hindu father who died intestate. The judgement cites and does an analysis of the Hindu law of joint family and coparcenary rights, and the rights of the members of a joint family in the property inherited by them with respect to right of survivorship. The judgment also refers to several previous cases that dealt with similar issues and provides a comprehensive overview of the legal principles that were applied in those cases and comes to the conclusion as aforementioned. 

This article is written by Sumit Kumar Singh of Institute of Law, Nirma University, an intern under Legal Vidhiya.


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