1. This second appeal arises out of a suit for partition instituted by one Shyam Narain. Shyam Narain had two brothers, Narsingh Rai and Jai Narain. Narsingh Rai had two sons, Sheo Shanker Rai and Sheo Murat Rai, and Jai Narain had three sons, Rajrup, Munua and Kamal. Shyam Narain had no issue, he and his brothers and his brother's sons were members of a joint Hindu family. Shyam Narain instituted his suit on 14th February 1940 after the death of Narsingh Rai. He impleaded Jai Narain, the sons of Jai Narain and the sons of Narsingh Rai. While the suit was pending, he died on 20th August 1940. Jai Narain then made an application that he should be substituted as plaintiff in place of Shyam Narain. This application was made on 3lst August 1940. Before orders could be passed upon it, Jai Narain died on 20th July 1941. His sons made an application for substitution on 21st August 1941 and their application was granted on 5th January 1942. They made an application for amendment of the plaint on 13th March 1942 asking that the one-third share which they had inherited from Shyam Narain and the one-third share that they had in their own right might be separated from the one-third share belonging to the sons of Narsingh Rai and that property representing the share of the two-thirds should be allotted to them in partition. This application was allowed on 24th March 1942 and a preliminary decree was passed in their favour on 9th September 1942. The sons of Narsingh Rai instituted an appeal in the Court of the Additional District Judge of Gorakhpur at Basti. The learned Judge held that Shyam Narain's right to sue for a partition was a personal right which died with him and consequently he amended the preliminary decree and directed that property corresponding only to the one. third share of Jai Narain's sons should be allotted to them, in this partition. The sons of Jai Narain have appealed and I have no doubt that the decree of the learned Judge of the lower appellate Court is incorrect. The learned Judge has quoted no authority for his proposition that the right of Shaym Narain to sue for partition as a separated member in respect of his one-third share was a personal right and did not survive. As soon as Shyam Narain had expressed a definite intention to disrupt the joint family, by instituting the suit the family was disrupted and thereafter the question of partition was between tenants-in-common. Learned Counsel for the respondents has not been able to bring to my attention any case in which it has been held that the heirs who succeed to the share of a deceased tenant-in-common are not entitled to prosecute the suit for partition which he has instituted. I have never heard, for instance, that proceedings for partition of a revenue mahal abate if the applicant for partition dies. The right of partition is part of the right of the owner of a share and when the right of ownership passes on the death of a tenant-in-common, the right to partition also passes. It is possible that there was some confusion in the mind of the learned Judge between the right to disrupt a joint Hindu family which may be described as a personal right, and the right to seek a partition by metes and bounds after the family had been disrupted, which is a right attached to the ownership of the shares of the separated members. The learned Judge seems also to have been influenced by an idea that in some way the application for substitution affected adversely the right of the sons of Narsingh Rai to raise any plea that they may have chosen to raise but when the question for substitution was decided it was open to the sons of Narsingh Rai to raise any pleas which they wished to raise in order to show that Jai Narain and after him his sons did not succeed to the share of Shyam Narain. It is not suggested that there was any plea which they could have raised and which they did not raise because the learned Munsif allowed the suit to proceed.
2. The only question in this case is whether the sons of Jai Narain have now a two-thirds share in the property and, if they have what property should be allotted to them as representing that share. There is no reason to suggest that any failure of justice has in fact occurred. Learned Counsel is unable to suggest any reason why Jai Narain who was the nearest reversioner, should not succeed to the share of Shyam Narain. After the death of Jai Narain, his share would naturally pass to his sons. When the property is being divided by metes and bounds there is no reason why the sons of Jai Narain should not get all the property which represents their undoubted two-thirds share. There is no point in giving them separate property in respect of their original one-third share and forcing them to remain as tenants-in-common with the sons of Narsingh Rai in respect of the other two-thirds so that they would have had to institute another suit for partition to divide the property representing that two-thirds into two equal shares. I set aside the decree of the learned Judge of the Court below and restore the decree of the trial Court. The appellants will get their costs in both the appellate Courts.