1. This appeal arises out of a suit for partition filed by the plaintiff against his uncle Totappa, defendant No. 1, and his step-brother Basawaneppa, defendant No. 2. The plaintiff's mother Basawa was impleaded as defendant No. 3, and in her written statement she asked for the separation, of her share also. Defendants Nos. 1 and 2 contended that the plaintiff was an idiot by birth and as such was not entitled to any share in the joint family property. The lower Court held that the plaintiff was not an idiot, and ordered a partition and declared that the plaintiff and defendants Nos. 2 and 3 were each entitled to one-sixth share in the joint family property, and defendant No. l to a half share, and ordered that the property assessed to Government be partitioned through the Collector and the rest of the property be partitioned by a Commissioner appointed by the Court, that each sharer be put in possession of the property allotted, and that defendants Nos. 1, 2 and 3 do pay the necessary court-fees in respect of the shares allotted to them at the time of execution.
2. Defendants Nos. 1 and 2 have appealed, contending that the plaintiff should not have been given a share as he is an idiot by birth, and assuming, that he is entitled to a share, defendant No. 3 is not entitled to a separate share as defendants Nos, 1 and 2 want to continue joint. There is no evidence on which the plaintiff can be held to be an idiot. Defendant No. 1 vaguely asserts that the plaintiff can understand nothing and is therefore an idiot from his birth. On behalf of defendants Nos. 1 and 2 two other witnesses were examined. Both the witnesses were members of the managing committee of the Co-operative Society of which defendant No. 1 was the Chairman and are, therefore, interested in him. Even they do not appear to have any reason for knowing whether the plaintiff is an idiot or not, and all that they say is that the plaintiff cannot understand properly and does not speak coherently. But the plaintiff entered the witness box and searching: questions were put to him by the learned trial Judge. He said that he was studying in Kannada 3rd Standard, that he was attending school for the last three or four years, and that he had no personal knowledge about the extent of the family property. When he was questioned regarding the multiplication tables and several other details, he gave correct and rational answers, and the learned Judge has made a special note at the end of his deposition that the plaintiff did not appear to be an idiot. The plaintiff had never any treatment for idiocy and no expert witness is examined to prove that he is an idiot. The burden of proof lay on defendants Nos. 1 and 2 to prove that the plaintiff is an idiot, and on the evidence the lower Court held rightly that the idiocy of the plaintiff was not proved.
3. Regarding the separation of defendant No. 3's share, it is urged that even after the plaintiff's separation the family still continues to be joint, since the other coparceners, defendants Nos. 1 and 2, do not want to separate. But in this case the two branches will be separated by the partition between the plaintiff on the one hand and defendants Nos. 1 and 2 on the other. It would have been a different matter if defendant No. 1 wanted to separate from his nephews and the nephews wished to continue joint. But here as the plaintiff separates from his step-brother and his uncle, it amounts to a partition between the sons of defendant No. 3, which then entitles her to a share equal to that of each of the sons. Although the mother cannot compel a partition so long as her sons choose to remain united, yet when a partition takes place between her sons, she gets a right to claim her share. In Damodardas Maneklal v. Uttamram Maneklal I.L.R. (1892) 17 Bom. 271 the leading case in which the mother's right to a share at the partition between her sons was recognised, her three sons remained joint, and only her step-son became separate. Yet her right to a fifth share was reserved for her and the separating step-son was allotted only a fifth share. It follows from this that even when one son separates from his brothers and uncles and the latter choose to continue joint, the mother becomes entitled to her share equal to that of her separating son. Defendant No. 3 is, therefore, rightly awarded a sixth share in the joint family property.
4. If defendants Nos. 1 and 2 want to continue joint, they are at liberty to do so, and the plaintiff and his mother will have no objection to it. Although the lower Court has ordered each sharer to be put in possession of the property allotted and defendants Nos. 1, 2 and 3 to pay the necessary court-fees in respect, of the shares allotted to them at the time of execution, it will be open to defendants Nos. 1 and 2 not to pay the court-fees and take separate possession of their shares. In that case they will continue to be joint, if they so desire. We, therefore, see no reason to interfere with the decree of the lower Court. The appeal is dismissed with costs.