PRANJIVANDAS SHIVLAL Vs. ICHHARAM VIJBHUKHANDAS

JUDGEMENT

(1.) This is an appeal brought from a preliminary decree made by the learned Subordinate Judge of Surat in a suit for partition. The appeal is brought by the defendants Nos. 6 to 11 and 13 who are represented before us by Diwan Bahadur G.S. Rao.

(2.) The genealogical tree of the parties, which is requisite to an understanding of the points involved, is set out at the beginning of the judgment of the lower Court and need not now be repeated. The main argument on behalf of the appellants has been that the plaintiff s share in the family property should be only 1/4th and not 1/3rd as the learned Judge below has decided. As there are now existing only three branches descended from the original ancestor, Sambhulal, it is clear, and is admitted, that if partition is to be made having regard only to the present state of the family, the plaintiff is entitled to 1/3rd. But, says Mr. Rao, his claim is reduced to 1/4th owing to the circumstance that in 1892 his brother Magan separated from the family and took away with him a 1/12th share of the family property. The whole question really involved in this argument is, whether partition is now to be enforced in accordance with the existing condition of the family, or whether, in enforcing partition now regard is to be had to an allowance made for a share withdrawn by one member of the plaintiff s branch of the family, Magan, when he seceded from the coparcenery in 1892. Mr. Rao contends that allowance must be made for Magan s withdrawal of the 1/12th share, and the argument is that partition is primarily per stirpes and is per capita only among the members of any particular branch, and, therefore, that in alloting now its appropriate share to any one branch the Court should reckon with any portion of the joint property which has already fallen to the share of that branch. In the particular case before us the argument works out in this way, that since the plaintiff s branch in the person of Magan has already received 1/12th of the property, the present twelve shares must be distributed among the three branches with due regard to the 1/12th already acquired by the plaintiff s branch, that is to say, since 1/12th has already gone to the plaintiff s branch, plaintiff is now entitled not to the 1/3rd which he would ordinarily receive, but to the 1/3rd minus the 1/12th, in other words, 1/4th. In support of this argument reliance is placed upon the decision in Manjanatha v. Narayana (1882) I.L.R. 5 Mad. 362. That case was quoted before the learned Judge below, but he avoided its authority, first, because he regarded it as distinguishable on its facts from our present case, and, secondly, because he was of opinion that in Wasantrao v. Anandrao a Bench of this Court had adopted the contrary opinion. It seems to me, however, clear that Wasantrao s case has no bearing upon the present question. For, first, the point now before us was never suggested in Wasanlrao s case, nor was it considered by the Court, and, secondly, the decision of this Court rested on the ratio that Madhav who had released his share must be regarded as having died, so that his share lapsed to the family. Wasantrao s case, therefore, being laid out of consideration as of no relevance to our present facts, we are left with Manjanatha v. Narayana (1882) I.L.R. 5 Mad. 362 as the only direct authority. I am unable to agree with the learned Subordinate Judge that this case can be fairly distinguished from the case now before us. On the contrary, it seems to me that the facts in the Madras case were essentially the same as those with which we have to deal, and if the Madras decision is accepted as good Hindu law applicable also to this Presidency, then I have no doubt that the appellants ought to succeed on this point.

(3.) The genealogy of the parties and their relative position in the Madras case are set out in the judgment of the lower Court and may also be gathered from the report in the Madras Series. I will not, therefore, encumber this judgment by repeating them. It is enough to say that at a partition made in 1867 7 1/12th shares were allotted to various members of the family, and there were left 5 1/12th shares in the possession of Ramkrishna, Manjanatha and Narayan II. Ramkrishna having died, Manjanatha brought a suit for partition. It was held by the Madras High Court that he was entitled to three of the 5 1/12th shares left and that Narayana II was entitled only to the remaining two shares. That decision was arrived at, as I understand the judgment, because the learned Judges held (1) that in 1867 there was no disruption of the joint family, but only a separation by certain members, the others continuing joint after as before this event; (2) that the rule directing division primarily per stirpes and secondly per capita inside each branch applies only where all the coparceners desire partition at one and the same time; and (3) that since the two brothers of Manjanatha had in 1867 taken together 3 1/12ths shares, each taking 11/2 such shares, therefore the plaintiff, Manjanatha, should get three shares, 11/2 in his own right and 11/2 as representing his deceased father, so that Narayan II could only get two of these 1/12th shares. Narayan II, it should be said, had contended that the distribution should be equal as things stood at the date of suit, so that the plaintiff, Manjanatha, should receive 21/2 shares out of the five. But this contention was disallowed, because, as I have explained, the learned Judges decided that regard must be had to the share which had already gone to the plaintiff Manjanatha s branch. Now if we apply this reasoning to the facts before us, we start with this : that in 1892 the present plaintiff s branch in the person of Magan received a 1/12th share. That must remain to the debit of the plaintiff s branch, and consequently the plaintiff s present claim cannot exceed the 1/3rd to which he would ordinarily be entitled minus the 1/12th which his branch had already taken. In other words, upon the reasoning adopted in the Madras judgment the appellants are right in saying that the plaintiff s present claim cannot exceed a 1/4th share. The learned Subordinate Judge, I think, was mistaken in supposing that the Madras judgment was based on the view that in 1867 there had been an actual or general division among Manjanatha s ancestors. On the contrary, the Court held that the members, who did not separate from the coparcenery in 1867, continued throughout to form a joint family. That is identically the case here where both parties agree, and where the learned Judge below has found, as a fact, that when Magan separated in 1892, the other members did not divide but continued as a joint family both before and after 1892. In view of the Privy Council s judgment in Balabux v. Rukhmabai (1903) 5 Bom. L.B. 469 it is clear that this is the position which must be accepted for the determination of our present case. I must not be taken as suggesting that the decision of this appeal would be different even if the other members had to be regarded as reunited coparceners after 1892. I mention that their status continued joint only in order to show that in this respect also the facts in the Madras case were the same as those now before us.