PALANIAPPA CHETTIAR Vs. ALAGAN CHETTI

JUDGEMENT

(1.) THE plaintiff in this case, the present appellant, instituted a suit for partition of family property against his father and three half-brothers. During the pendency of this suit, a fourth half-brother was born, and all these are defendants and respondents. The right of the plaintiff to have partition was not seriously questioned: the dispute concerns the extent of his share. The Subordinate Judge decreed to him a third share, but the High Court only gave him one-sixth, on the theory that the father would have one share, the plaintiff one, and each of his four step-brothers, one. There is a possible third view that the plaintiff should have one-fifth, his youngest born step-brother not being counted for a share, as having been born since the unequivocal statement by the plaintiff of his desire to have partition. But in the circumstances, their Lordships do not find it necessary to pronounce upon this contention.

(2.) IT is not disputed that, according to the ordinary Hindu Law of the Mitakshara, upon the death of the father and a subsequent partition, the five children of the two marriages would each take an equal share, and that if there were a partition during the father's lifetime, he would count as one with the five, so that the shares would be in sixes.

(3.) HE did not in his plaint state the custom as to application on partition in the precise form in which he insisted upon it in his evidence, and in which it was found in his favour by the Subordinate Judge, and it has been contended by the respondents that this variation is fatal to his case.