Muttusami Ayyar, J.
1. In this case the common ancestor of the parties was Bapayya; he had two sons, Venkatesa and Narayana. Venkatesa had as on Rama-krishna and Narayana had 3 sons Dasa, Lakshmana and Ramachandra. Rama-krishna had three sons Rayappa, Madava and the plaintiff Manjanatha; Lakshmana left two sons Venkatesa and Vaikunta; Ramachandra left a son Ganapati; and Dasa left a son Narayana, who is the first defendant in this suit. Thus in 1867 there were four coparceners in Ramakrishna's branch, Ramakrishna and his three sons, and in Narayana's branch there were the representatives of his three sons Dasa, Lakshmana, and Ramachandra. Ramakrishna's first two sons, Rayappa and Madava in the one branch, and the representatives of Lakshmana and Ramachandra in the other branch, brought the partition suit No. 21 of 1867 and separated from the rest of the joint family. The result of that suit and of the trial in the appeal suit 434 of 1871 was that the family property was divided into twelve shares; that out of six shares due to Rama-irishna's branch, in which there were four coparceners including the father, three shares were allotted to Rayappa and Madava; and that out of six shares due to Narayana's branch, four shares were allotted to the representatives of Lakshmana and Ramachandra. The remaining five shares due to the other coparceners in the family were not separately allotted to them, and Ramakrishna and his son the plaintiff, in one branch, and the first defendant, who is the son of Dasa, the son of Narayana, in the other branch, continued to live together subsequently to the suit of 1867 and enjoyed their shares in common as before. Ramakrishna died in 1872. His son, the plaintiff, claimed in this suit three out of five shares) but the first defendant contended that he was entitled only to two shares. The Subordinate Judge awarded, however, to the plaintiff two and a half shares on the ground that, in allotting shares at a second partition, the present state of the family should alone be considered and that the state of the family when the other members separated from it ought not to be taken into account. The question, therefore, arising for decision in this appeal is whether, in cases in which some members of a joint Hindu family separate from it at one time and others on a subsequent occasion, regard should be had to the shares allotted at the first partition in computing the shares to be allotted at the second division. I am of opinion that the Subordinate Judge is in error in holding that each of the branches, as it exists at present, should have an equal share. The rule that, as between different branches, division should he by the stock, and that, as between the sons of the same father, it should be per capita, is laid down with reference to cases in which all the coparceners desire partition at the same time, and it ought not to be applied indiscriminately, as the Subordinate Judge has done, to cases of partial division. The rule is designed to ensure equality of partition in cases of vested interests held in coparcenary, and to carry out in those cases the principle that those who have capacity to confer equal spiritual benefits on the common ancestor ought to take equal shares. In its simplest form, a joint family consists of a father and his sons, and it attains a further development by each son becoming a father, and by each of the male descendants of that son having male issue in his turn. When, therefore, a joint family in an advanced stage of development is broken up by partition, regard is had to the successive vested interests of each branch; and the division by the stock at each stage a new branch intervenes secures equal shares to those who were the sons of the same father and had capacity to confer an equal amount of spiritual benefit upon him. By applying the rule in the mode in which the Subordinate Judge has done in this case, the principle of equality above indicated, from which the rule of division by the stock was deduced, is violated, and the partition is rendered unequal and, therefore, illegal. If, for instance, A and B, two brothers, have each two sons, and if the two sons of A first separate from the joint family, and if A should afterwards desire partition from B and his sons, A would get according to the Subordinate Judge, the two-sixths share allotted to his sons at the first partition and a moiety of the remaining four-sixths share at the second partition, and his share would thus on the whole amount to four-sixths, one-sixth in excess of the moiety which alone he was entitled to get and would have got if A and B had entered into a partition before they had sons or before the sons of A had separated from him. At the first partial division, allotments due to the other coparceners were determined by an act of the mind for the purpose of computing the shares which were allotted to those who desired to separate, and in the same manner the allotments made at the first partition should be taken into account in calculating the shares to be awarded at the second in order that unequal partition, which is forbidden by law, may be avoided. This view is confirmed by the Smriti Chandrika, in which it is said with reference to a second partition among re-united parceners, that the shares may be unequal where the common wealth was at the time of reunion made up of disproportionate contributions, and that the inequality must be proportionate to the extent of the contribution made by each parcener at the time of reunion. (See Smriti Chandrika, Krishnasami Ayyar's Translation, Chapter XII, para. 4.) I do not desire, however, to be understood as saying that the right of survivorship or the birth of new coparceners between the first and second partitions will in no case increase or decrease the shares to be allotted at the second partition. The shares of coparceners in each branch may increase or decrease according as the existing coparceners die or new coparcenars are born, and when the joint family consists of several branches and one of those branches becomes extinct, the interest of that branch may also survive to the other. But so long as neither branch is extinct, the right of survivorship has no influence upon the shares of the coparceners who belong to a branch different to that to which the deceased coparcener belonged. Take for example the case of two brothers, one of whom has two sons and the other has three sons.. If either of the brothers dies, the share of the other branch would still be a moiety. If both brothers die, each branch will still take a half share. If one brother and two out of his three sons die, the surviving son would take the moiety of his own branch, whilst the two sons in the other branch would take each only a quarter share. So long as there are coparceners in each branch, the operation of the right of survivorship is precluded by the right of representation. In the case before us, therefore, the death of Ramakrishna ought to lead to his share surviving to his son, and as his son would stand in his place by representation on his death, the first defendant could not claim any extra share by right of survivorship. In Radha Churn Dass v. Kripa Sindhu Dass I.L.R. 5 Cal. 474it is doubted whether any partial partition of the family property can at all take place under Hindu Law except by arrangement, and if this view should prevail, the proper status of the parties to this appeal would be that of reunited parceners. But whether we regard them as-coparceners or reunited parceners, it will make no difference for the purpose of this appeal. As a matter of usage, however, it is not unfrequently the case that owing to disagreement, one member of a joint family separates, while others continue to live in coparcenary. Nor is it clear how there can be a reunion without a previous partition. The text of Brahaspati ( He who, being once separated, dwells again through affection with his father, brother, or paternal uncle, is termed reunited,') on which the doctrine of reunion is founded, premises a previous bona fide partition and a subsequent reunion. It may be that when some of the coparceners desire to separate, it is necessary to ascertain the shares of others who desire to continue in union. Cases may also be conceived in which it may not be necessary to set out the shares of each and every member of the joint family. To what extent it would be necessary to ascertain the shares due to others would depend on the position in the family pedigree of the coparcener seeking separation. If, for instance, the representatives of two branches seek separation, it would suffice to ascertain the shares due to each branch, and there would be no necessity for going further and setting out the allotment due to each member of the family in each branch. It seems to me anomalous to hold that in a case where two brothers, each of whom may have several sons and grandsons, desire to separate, all the members should be forced to separate, the sons and grandsons from their father and grandfather. But if, in such a case, partition is to be enforced only as between all the parallel branches, I do not see on what principle or text we are to permit a partial division in the case of some coparceners and to refuse it in the case of others. Again, it appears to me that each coparcener is at liberty to elect to separate from the joint family, but I am aware of no text which recognizes his power to force a separation among others against their will. If, in ascertaining the share of the coparcener who seeks to separate, the shares of others are ascertained, it is done only for the purpose of determining the allotment to be made to him and in so far as it is necessary for that purpose. In substance, it is a means of calculation, and I do not see my way to recognize an arithmetical computation as a legal partition when those whose shares are mentally ascertained do not desire to separate from one another, but desire, on the contrary, to live together. Jagannada makes separation or non-separation depend on the free consent of the coparceners, and says that a Hindu family may continue in union notwithstanding the separation of some of the brothers and the allocation to them of their shares in the joint estate. [ Jagannada's Digest (Colebrooke), Book V. Chapter VIII, Section 430.] He then goes on to notice the argument that, since the law has not indicated partition among some of the co-heirs and coparcenary of others, and no special rule of decision has been delivered on the point, no such partition ought to be made, but says in answer to it that a partial distribution is not void, for it has been made by the free consent of all the co-heirs and no special law forbids it. He then concludes with the observation that since a distribution is made at the first partition by an act of the mind among all the coparceners, there is no difference in its consequences as to the allotment to be made to the eldest son at the second partition. Under these circumstances I hesitate to hold that a partial division is illegal or that the status of the parties to the suit is that of reunited parceners. However this may be, it is immaterial for the purpose of this appeal whether we regard the parties to this suit as coparceners or reunited parceners, and I would reverse the decree of the Subordinate Judge and restore that of the District Munsif. Respondent to pay appellant's costs both in this and in the Lower Appellate Court.
Innes, Officiating C.J.
2. In this case the common ancestor of the parties was Bapayya. He had two sons, Venkatesa and Narayana, who became the -ancestors of the two branches of the contending parties, who continued undivided up to and for some time subsequent to the institution of the Suit 12 of 1867. The result of Original Suit 12 of 1867 and of the trial in the appeal suit was that the family property was divided into twelve shares, of which each branch took six shares.
3. The only survivors at that time in the plaintiff's branch were Ramakrishna and his three sons, Rayappa, Madava, and the plaintiff. Rayappa and Madava took their shares and separated; Ramakrishna and plaintiff remained united. In the other branch there were four representatives, of whom one Venkatesa got two shares and separated, and Vaikunta and Ganapati each took one share and The remaining two shares were taken by Narayana.
4. Narayana with his two shares, and plaintiff and Ramakrishna, his father, with their three shares, remained, as it is stated, united. Ramakrishna died in 1872, and plaintiff sues for the three shares which were allotted to his father and himself.
5. The original contention of the defendant Narayana was that plaintiff was entitled only to two-fifths of the entire property. He eventually conceded that he was entitled to a half.
6. The District Munsif decided that the plaintiff was entitled to the three shares allotted to himself and his father. The Subordinate Judge in appeal was of opinion that the plaintiff could not recover on the footing of the state of the family as it stood when the other members retired from communion. He said 'until a division takes place, the manager is at liberty to apply the produce of the estate to any purpose of the family, and, even if he applied it to his exclusive use, the other members could not claim their share of the produce from him.'
7. He decreed that plaintiff' should recover only half the estate, and disallowed the claim to past produce.
8. There is no appeal in regard to the produce prior to the date of the decree. The appeal only relates to the share to which plaintiff is entitled. He claims the three-fifths of the estate awarded by the Munsif. Although the parties have regarded their status as that of persons who have never previously separated, it is contended that their proper status is that of reunited coparceners. It may be argued that it was necessary to the partition that took place after the suit of 1867 that the shares of the several coparceners should be ascertained and allotted. A partition of the wealth was then to all intents and purposes effected. The mixing up again of the effects which had been divided, together with the continued residence of the coparceners in union, constituted a reunion. But in the case of a parcener dying after reunion, the effect of a reunion, as plainly declared in the Smriti Chandrika, Chapter XII, Section 9, is, not 'to destroy the extent of the share so ascertained in the original partition. It simply destroys the exclusive right, which he had possessed prior to the reunion, to the property that had fallen to his share. Therefore the whole estate is not on his demise taken by all the reunited parceners, but, at the time of the second partition, his share is set. apart,' and goes, as the author proceeds to explain, not indeed to the widow, but to his reunited uterine brother.
9. Of course what is here contemplated is the case of a parcener dying without male issue. The preference of the uterine brother over the other coparceners, whom the case supposes, points to a rule of succession in the branch to which the share was originally allotted, and would not justify the view taken by the Subordinate Judge of the relative rights of the parties. But if we regard the case as one in which no partition had actually been effected of the shares of the. plaintiff and his father and of Narayana, and deal with the case as though these persons had simply continued in union, it seems clear that the allotment of shares could not be equitably effected in the proportion fixed by the Subordinate Judge. Suppose, for instance, A has ten sons, and B his brother ten sons. If nine of A's sons separate, leaving A and B with ten sons, then there would be twelve persons to share. Would A who, at the time of the separation of the nine sons, was entitled to one-tenth of one-half of the entire family property, or one-twentieth of the whole, be now entitled to no more than one-twelfth of the half or one-twenty-fourth? It seems clear that reunion would not take place upon such an understanding, which would  lead to an inequality of apportionment to those entitled to equal shares, and would be in conflict with the rule of Hindu Law requiring equality. It has been doubted whether there can be a partition partial as regards the persons making it [(see as to this Radha Churn Dass v. Kripa Sindhu the condition was not violated, and, if they failed to take proper precautions to prevent his breach, they must take the consequence. As to the doctrine Dass) I.L.R 5 Cal. 474 and Book V, Chapter VIII, Section 430, Jaganna-da's Digest, where he puts the case of four brothers of whom two separate and two remain undivided, and states the difficulties that may arise in determining who shall take the lapsed share, and concludes, as I understand him, that, although the two brothers remaining undivided cannot be said to be reunited in the strict sense of the term, yet they may properly be so regarded, for in fact (from the necessity of ascertaining the shares of all the co-heirs) 'a distribution is in such case made among all the co-heirs by an act of the mind,' and he appears to argue that the mere circumstance of the absence of an actual partition by metes and bounds, because the intention of the two brothers to continue to live together after the partition did not render that course necessary, does not prevent what they effected constituting an actual partition followed by reunion. But this is to import a fiction. As a matter of fact in such a case there is merely a mental calculation of the shares of the several coparceners to enable some to separate. There is no separation of those who continue in union, and, of course, no reunion. Such partial partitions are of every day occurrence, and, unless usages are to be ignored for the sake of preserving, in its strict integrity, a rule of Hindu law excluding partial partitions the existence of which has no foundation in any express text, such partial partitions must be recognized. I agree, therefore, in the decree proposed by Mr. Justice Muttusami Ayyar.