Banerji and Aikman, JJ.
1. The plaintiffs, who are the five sons of one Rajit Pande, brought the suit which has given rise to this appeal to have a sale-deed executed by Rajit Pande in favour of the appellants set aside, on the ground that the property told is joint ancestral property in which the plaintiffs have a share and that their father Rajit Pande was not competent to sell it. They also alleged other grounds in their plaint, such as insanity and want of consideration, but these were abandoned at the hearing in, the Court of first instance It is admitted that the property in question was inherited by Rajit Pande from his maternal grandfather Acharaj Upadhya. The widow of Acharaj inherited the property from her husband and after her Rajit Pande inherited it. It was contended on behalf of the defendants appellants that as the property was inherited by Rajit from his maternal grandfather, the plaintiffs acquired no interest in it and that they are not entitled to question the sale made by their father. The Court of first instance decreed the claim in respect of five sixths of the property, subject to the payment of a sum of Rs. 197, which it held to be an antecedent debt which had been properly discharged out of the consideration for the sale. This decree of the Court of first instance has been confirmed by the lower appellate Court.
2. The Courts below have relied on the ruling of the Madras High Court in Vythinatha Ayyar v. Yeggia Narayana Ayyar (1903) I.L.R., 27 Mad., 300, at page 312, which is based upon the ruling of their lordships of the Privy Council in Venkayyamma Garu v. Venkataramanayyamma Bahadur Garu (1902) I.L.R., 25 Mad., 678. The ruling relied upon no doubt supports the view adopted by the Courts below, but with reference to it Mr. Mayne in the 7th edition of his work on Hindu Law (page 768) 'observes as follows: 'How far the latter decision is justified by it (the decision of the Privy Council) is a question which may hereafter admit of considerable discussion,' The question to be determined in this case is whether property inherited from the maternal grandfather is ancestral property within the meaning of the Mitakshara in which a son by his birth acquires an interest jointly with his father. As pointed out by Mr. Mayne in paragraph 275, the term 'ancestral property' in its technical sense is 'property which a man inherits from a direct male ancestor not exceeding three degrees higher than himself * * * * * and is at once held by himself in co-parcenary with his own issue.' In the same paragraph he states that 'property which a man inherits from a female or through a female, as for instance a daughter's son, or which he has taken from an ancestor more remote than three degrees, or which he has taken as heir to a priest or fellow-student would not be ancestral property.' This view is supported by the authorities to which he refers. It is true that in Colebrook's translation of the Mitakshara, Chapter I, Section 1, Sub-section 27, it is stated that 'it is a settled point that property in the paternal or ancestral estate is by birth,' but, as pointed out in Mr. J.C. Ghose's Hindu Law, 2nd edition, p. 375, the word 'ancestral' in this placitum is a mis-translation, the correct translation being, 'property in the paternal or grand-paternal estate is by birth,' as the word in the original text is pitamaha, that is, paternal grandfather. It is clear therefore that under the Mitakshara the only property in which a son acquires an interest by birth jointly with his father is property which has come to the father from his own father and not from an ancestor in the maternal line. This is further manifest from the Mitakshara, Chapter I, Section 5, Sub-section 1 of which shows that the section deals with 'the division of the grandfather's effects by the grandson.' In Section 5 it is stated that 'in such property which was acquired by the paternal grandfather* * * the ownership of father and son is notorious * * * for (or because) the right is equal or alike, therefore partition is not restricted to be made by the father's choice.' As the right acquired by a son on his birth jointly with his father is thus limited to property which belonged to the paternal grandfather, the son does not acquire a right by birth equal to his father's in property which has come to the father from his maternal grandfather, (See also the observations contained in the Full Bench ruling of the Madras High Court in Karuppai Nachiar v. Shankaranarayanan Chetty, (1903) I.L.R., 27 Mad., 300, at p. 312).
3. Has this rule been varied or departed from by their Lordships of the Privy Council in the ruling to, which we have already referred? As we read the judgment a different rule has not been laid down. The question before their lordships was whether in respect of property which had devolved from their maternal grandfather on two brothers who formed members of a joint family the rule of survivorship applied and the property passed on the death of one of the brothers to the surviving brother. Their Lordships held that the surviving brother would take the property to the exclusion of the widow of the deceased brother. That was the only question which their Lordships had to consider and which they determined. The question before us, namely, whether the son of a person who inherited property from his maternal grandfather acquires by birth an interest in such property equally with his father, did not arise in that case and was not decided. Their Lordships no doubt say that 'in the grandfather's hands it was separately acquired property. In the hands of the grandsons it was ancestral property which had devolved on them under the ordinary law of inheritance (page 686).' We do not think, however, that the words 'ancestral property' were used in the limited sense in which they are used in the Mitakshara, namely, property in which, the sons acquire by birth a joint interest with their father, Having regard to the arguments addressed to their Lordships by Mr. Mayne, which met with their approval, and the instances of joint ownership referred to in the judgment, the only question which appears to have been considered was whether when property devolved by inheritance on, persons who were members of a joint family the rule of survivorship applied, and the question what constituted ancestral property in the technical sense of the Mitakshara was not discussed or decided. It is a well known rule of the Mitakshara law that property may be joint property without having been ancestral. In the case of such joint property it has never been held that a son would by birth alone acquire an interest in the property. This appears to have been the view adopted by the Bombay High Court in Chatturbhooj Meghji v. Dharamsi Naranji (1884) I.L.R., 9 Bom., 438, and that seems to be the opinion of Mr. Mayne also (see paragraph 277). Having regard to the whole context of the rules laid down by the Mitakshara it is clear that it is only in the case of property which was derived from a paternal ancestor that such property becomes the joint property of the father and his son and we should have considerable hesitation in agreeing with the opinion expressed by Bhashyam Iyengar, J., in Sudarsanam Maistri v. Narsimhulu Maistri (1902) I.L.R., 25 Mad., 149, at page 156 if he thereby intended to hold the contrary. For the above reasons we are unable to hold that a son by birth acquires an interest jointly with his father in property which the latter inherited from his maternal grandfather and we cannot agree with the ruling of the Madras High Court in Vythinatha Ayyar v. Yeggia Narayan Ayyar (1908) I.L.R., 27 Mad., 382. The present suit was therefore not maintainable on the ground on which it was decreed by the Courts below. As we have said above, the other grounds taken in the plaint were abandoned in the Court of first instance.
4. The result is that we allow the appeal, and, setting aside the decrees of the Court below, dismiss the suit with costs in all Courts.