MURUGAYYA MANIYAKARAN Vs. PALANIYANDI MANIYAKARAN, MINOR THROUGH HIS MOTHER AND GUARDIAN SUNDARALAKSHMI AMMAL

JUDGEMENT

(1.) This is an appeal preferred by the 1st defendant in the suit against the decree of the Court of the Temporary Subordinate Judge of Ramnad declaring that the partition made of the family properties during his life time by the 1st plaintiff, the appellant s father is valid and binding upon the appellant. The 1st plaintiff died after the institution of the suit and is represented by the 3rd plaintiff (2nd respondent) his widow, the 2nd plaintiff (1st respondent) being minor grandson of his.

(2.) The first question argued before us relates to the power of a Hindu father to effect a partition of ancestral family property without the consent of his sons. It has been held in this Court as far back as 1880 in Kandasami v. Doraisami Aiyar (1880) I.L.R. 2 M. 317 that the father is vested under the Hindu Law with such authority upon certain conditions and this ruling has been mentioned with approval in a number of subsequent decisions of this Court ("see Karuppannan Chetti v. Bulokam Chetti (1899) I.L.R. 23 M. 16 Visalakshi Ammal v. Sivaramien (1904) I.L.R. 27 M. 577. s.c. 11 M.L.J. 310 and Roop Lal v. Lakshmi Doss (1905) I.L.R. 29 M.1 and also by the Bombay High Court in Ganpat v. Gopal Rao (1899) I.L.R. 23 B. 636. The learned Advocate General has however argued that the decision in Kandasami v. Doraisami Ayyar 2 is wrong and is based upon an erroneous interpretation of the Mitakshara. The chief basis of his argument is that Mr. Justice Muthusami Aiyar in whose judgment the authorities on the subject are discussed, over-looked Section 5 of chapter I of the Mitakshara where it is stated in the first paragraph " The distribution of the paternal estate among sons has been shown; the author next propounds a special rule concerning the division of the grandfather s effects by grandsons." It is contended that this shows that the power of the father to make a partition at his pleasure which is spoken of in Section 2 refers only to his self acquisitions and not to ancestral properties. The whole scheme of the Mitakshara was very carefully analysed by Phear and Morris, JJ. in Laljeet Singh v. Rajcoomar Singh (1878) 12 Beng. L.R. 373 and there can be no doubt as they have pointed out that Section 2 deals with partition of property generally whether ancestral or self-acquired. The scope of the section is indicated in the first sentence of the paragraph which says " At what time, by whom and how, partition may be made, will be next considered." Paragraph 6 expressly refers to the distribution of property which is not acquired by the father. It says " This unequal distribution is allowed in respect of his self-acquired property. But, if the wealth descended to him from his father, an unequal distribution at his pleasure is not proper; for equal ownership will be declared." The effect of this paragraph read with the preceding paragraphs is that the father may at his pleasure make a partition. of the property in his hands, but his discretion as to the shares to be given to the sons is unrestricted with reference to property acquired by himself, while he is bound to divide equally between his song the ancestral property. The four periods of partition are mentioned in paragraph 7. That, as pointed out in Nagalinga Mudali v. Subramaniya Mudali (1880) 1 M.H.C.R. 77. refers not merely to the self-acquired but also to ancestral property. The main scope of Section 5 on the other hand is to define the rights of the father and the son in ancestral property. It lays down the rule as to how the shares of the sons are to be calculated in such property and also provides that with respect to it, that partition can be demanded by the sons as well and does not depend merely upon the father s choice. The learned Advocate General has referred us to a dictum of the Judicial Committee of the Privy Council in Brijraj Singh v. Sheodan Singh (1913) I.L.R. 35 A. 346 : All that is stated there is that the head of the family has no right to make a partition of ancestral property by a will. The present is not such a case. On the other hand, the Privy Council in a recent case reported in Ramkishore Kedarnath v. Jai Narayan Ramraohhpal (1913) I.L.R. 10 C. 966 recognise the authority of the father to make a partition which would bind his minor sons under certain circumstances and in support of the proposition they refer to a previous ruling of theirs reported in Balkishen Das v. Ram Narain Sahu (1903) I.L.R. 30 C. 738. Though there is not to be found any express decision on the exact point under consideration excepting that contained in Kandasami v. Doraisami Ayyar 1 that case has been throughout treated as correctly laying down the law so far at least as this presidency is concerned, by the learned judges of this Court as well as by the authoritative modern writers on Hindu Law, such as Mayne (See paragraph 492), Jolly (See his lectures, pp. 97 and 98) Sir John Trevelyan (see his Hindu Law page 327). As regards commentaries other than the Mitakshara, Smriti Chandrika (See Chap. 2 Section 1, paragraphs 20 to 24) which is of special authority in this presidency support the view taken in Kandasami v. Doraisami Ayyar (1880) I.L.R. 2. M. 317. So also does Subhodini (See foot-note to paragraph 7, 8. 2 chapter I of Colebrooke s Mitakshara) and I do not think that Saraswati Vilasa (see paragraphs 215 and 216) and Vivada Ratnakara (See Chapter, II, page 164 of Setlur s translation) to which we have been referred support the contention an behalf of the appellant. As for Apararka and Viramitrodaya, they are not authorities in this presidency and cannot usefully be referred to on the subject when the view taken by the learned author of Mitakshara is not open to any real doubt.

(3.) The partition by the 1st plaintiff in this case was made in three equal shares among his sons and himself and the only way in which its fairness was sought to be impeached was that the 1st plaintiff should not have set apart a portion of the family property for the conduct of certain charities. It is found by the learned Subordinate Judge that the provision for the charities was. of a reasonable character and in accordance with what has been the practice of the family for a long time past. The appellant himself in his turn has been conducting these very charities. I may also mention that Mr. Rangachariar, the learned pleader for the respondent stated that he would not object on behalf of his client to the appellant receiving his share if he so wanted, in such of the properties set apart for the charities as have not been irrevocably dedicated. The appeal fails and is dismissed with costs. Phillips, J.