DHARMABAL Vs. S LAKSHMI AMMAL

JUDGEMENT

(1.) This second appeal is filed by the 4th plaintiff in a suit for partition. The question for consideration in the second appeal is with regard to the shares in the plaint schedule property to which the parties are entitled. The facts are not in dispute. The parties are governed by the Hindu Mitakshara law. Sankaranarayana Iyer was the common ancestor. Gopala Iyer and first defendant were his children. Plaintiffs are the children of Gopala Iyer. Defendants 2 to 7 are the wife and children of the first defendant. Gopala Iyer died on 24-11-1978. The suit was filed in 1984 for partition of the rights of Gopala Iyer in the coparcenary property by the legal heirs of Gopala Iyer. The trial court decreed the suit. The defendants had contended that the plaintiffs right if any was barred by adverse possession. That contention was found against and it was confirmed by the lower appellate court. The lower appellate court earlier allowed the appeal and remanded the case to consider the question of shares to which the parties are entitled. After remand, the trial court again decreed the suit for share to the plaintiffs. In appeal, the lower appellate court has reversed the judgment and decree and directed that the plaintiffs are entitled to only 1/4th share in the plaint schedule property.

(2.) The learned counsel appearing for the appellant submitted that though the children of Gopala Iyer and Neelakanta Iyer are also members of the coparcenary when a division is to take effect it should be on per strips principle. She relied on Mulla s Principles of Hindu Law, page 440, 15th Edition, wherein it is stated that when each branch takes per stripes (that is, according to the stock) as regards every other branch, but the members of each branch take per capita as regard each other. This rule applies equally whether the sons are all by the same wife or by different wives. Illustrations given at page 441 reads as follows: (a) (a) A dies leaves a son B, two grandsons C1 and C2, three great-grandsons F1, F2 and F3 and one great-great-grandson K. A (dead) _____________________________________________ BC(dead) D(dead) E(dead) ___________ C1 C2 F(dead)G (dead) H ___________ F1 F2F3 K

(3.) Here there are four branches of the joint family represented respectively by the four sons A and their descendants. E s branch takes nothing as K, the only surviving member of that branch, is outside the limits of the coparcenary, being beyond the fourth degree of descent from A, the common ancestor. The joint property will therefore be divided per stirpes into three parts corresponding to the remaining three branches, each branch taking 1/3. The result is that B will take 1/3, C1 and C2 will take the one-third share of C equally between them, each taking of 1/3, i.e., 1/6 and F1, F2 and F3 will take the one-third share of D equally between them each taking 1/3 of 1/3, i.e., 1/9.