1. This appeal is by the defendant, the Jagirdar of Ami, in a suit instituted by the plaintiff to establish his right to receive maintenance from the defendant at Rs. 60 per month and for the recovery of arrears at the same rate from July 1905. The plaintiff is the adopted son of one Lakshmana Rao Sabeb who was the grandson of the plaintiff's grand-father's grand-father, Tirumal Rao, Saheb. Tirumal Rao had two sons, Srinivasa Rao and Venkata Rao. The defendant is the grand-son of Venkata Rao by adoption and the plaintiff is the great grand-son of Srinivasa Rao. The Jagir of Ami is an impartible estate descendible to a single heir according to the' rule of lineal primogeniture and is included in the schedule to the Madras Impartible Estates Act. The plaint alleges that the Jagir is a joint ancestral hereditary estate of the family of the parties and is subject to the liability under the Hindu Law of providing for the maintenance of the other members of the family. It alleges further that whatever may be the nature of the estate, the defendant is bound to make suitable provision for the maintenance of the other members of the family according to the established usage. The plaintiff after the death of his father, Lakshmana Rao, made an application to the Court of Wards (which was then in possession of the estate on behalf of defendant) asking for the award of maintenance to him; but it refused to recognise his right and the Government confirmed the order of the Court of Wards. The defendant in his written statement denied that the Jagir was common family property out of which collateral male relations would be entitled to claim maintenance and contended that even if it were a joint impartible estate the plaintiff could not claim maintenance as he and the defendant were removed from each other more than three degrees from their common ancestor and the plaintiff was not in such a degree of relationship as would entitle him to claim partition if the estate were not impartible. The defendant also denied what he understood to have been alleged in the plaint that he was in possession 'of the other joint family property in addition to the Jagir. Other contentions were also raised by the defendant which it is unnecessary to refer to for the purposes of this judgment.
2. The District Judge in his judgment says 'that the Jagir is an ancestral hereditary estate of the family is admitted. The plaint says that it is joint only in the sense that there has been no division in the family and that the members of the family are entitled to maintenance.' He held that the remoteness of the relationship between the plaintiff and the defendant did not deprive him of the right to maintenance and that he was so related to the defendant that if the estate were partible he would be entitled to enforce partition.. He also held that the Government Order which denied the plaintiff's right to maintenance did not affect him. In the result the lower Court decreed maintenance to the plaintiff at the rate of Rs. 55-8-11 a month and arrears to the period claimed at the same rate.
3. On appeal, Mr. Ganapathy Aiyar, the learned vakil for the appellant, repeated the contention urged before the lower Court that the plaintiff's relationship to defendant was not such as would entitle him to claim partition of the estate if it were partible. But he went further and urged a contention which is apparently opposed to the admission made by his client in the lower Court that the estate being impartible, it could not be held to be joint property of the family of the parties after the decision of the Privy Council in Sartaj Kutiri v. Deo Raj Kuari I.L.R. (1888) A. 272 and that according to that decision the Jagir must be held to be the absolute propsrty of each Jagirdar and not liable to the maintenance of any other member of the family on the footing of its being common family property. He went a step further and urged that apart from the result of the decision in Sartaj Kuari v. Deo Raj Kuari I.L.R. (1838) A. 272 the Jagir of Arni must be held to be the self-acquired property of the defendant and relied on the Judgment of this Court in Appeal Suit No. 25 of 1871 in a suit instituted by the plaintiff's adoptive father against the defendant's grandfather, Tirmal Rao, for maintenance. We are of opinion that the defendant should not be allowed to set up this new plea relating to the character of the estate owned by the defendant. It is no doubt true that in Appeal Suit No. 25 of 1871 this Court observed that 'it had been conclusively adjudged by the decision in the former suit between the parties that the property is self-acquired by the defendant under a sannad' and awarded maintenance to Lakshmana Rao on the terms of sannad which bound the Jagirdar to provide for the maintenance of the members, of the family according to usage and the orders of the Government. The former suit referred to in Appeal Suit No. 25 ofl87l was apparently Original Suit No. 76 of 1868. The view that then prevailed was that the holder of an unsettled palayam like Arni had no heritable proprietary right in the palayam and that each successive holder holds under a fresh title created by the gift of the Sovereign power. The view was set aside by the Judicial Committee of the Privy Council in Marungapuri case in The Collector of Trichinjpoly v. Lekkamani and Ors. (1874) 1 I.A. 282 which decided that not withstanding the absence of a permanent settlement the holder of a such palayam might be the holder of a heritable estate. the previous decision of this Court in Appeal Suit No 25. of 1871 proceeded therefore on a view of the law which is no longer supportable. The defendant's contention is contrary to his own statement in Exhibit F, the plaint in a suit instituted by him against the Secretary of State for India in Council, in which he stated that the Jagirdar of Arni is the ancestral hereditary estate of this plaintiff and has been held by him and his successors in hereditary proprietary right.' It is also, as already mentioned, contrary to his explicit admission in the lower Court in this case. We have no doubt that the contention is entirely unsustainable. But whatever its merits may be, we cannot permit the defendant to raise it here on appeal, especially as the question is not one purely of law.
4. Another contention, admittedly not raised in the lower Court, is that whatever might be the former tenure of the Jagir the defendant is now holding under a fresh sannad, dated 14th April 1909, according to the terms of which the defendant is bound to give maintenance only when he is required to do so by the established usage of his estate and when in addition the Government directs him to do so. Assuming that there is any substance in his contention based on a consideration of the new sannad we must disallow it apart from the question whether the Government had any power to affect the plaintiff's rights by a sannad granted to the defendant.
5. It is perhaps doubtful whether we should allow the defendant to go back to any extent on the admission I by him in the lower Court that that Jagir is an ancestral, undivided hereditary estate of the family. It was mads with full knowledge of the decision of the Privy Council in Surtax Kuari v. Deo Raj Kuzri I.L.R. (1838) A. 272. But as the argument purports to be based on a necessary legal inference from the decision of the Privy Council, we propose to deal with it briefly. In that case the Judicial Committee held that an alienation made by an impartible Zemindar in the North-Western Provinces could not be disputed by his son who would be entitled to succeed to the estate on the death of the alienor and the rule laid down there has been subsequently held by the Privy Council in Sri Raja Rao Venkata Surya Mahapati Ramakrishna Rao Bahadur v. The Court of Wards I.L.R. (1898) M. 383 to be applicable to the impartible estates in this Presidency. In Surtax Kuari v. Deo Raj Kuari I.L.R. (1838) A. 272 their Lordships held that 'the son of a holder of an impartible estate has not such a right by birth in the estate as would entitle him to interdict an alienation made by his father. They observed that the property in the paternal or ancestral estate acquired by birth under the Mitakshara Law is in their Lordships' opinion so connected with the right to a partition that it does not exist when there is no right to it.' They were of opinion that 'the foundation of the supposed restriction on the power of a father to make an alienation was the community of interest which the members of the family acquired by birth and that a right by birth did not exist where partition could not be enforced.' Various decisions were cited before their Lordships in support of the position that all the members of the family have such a joint right in an impartible estate as to entitle them to object to the alienation by the holder for the time being. But their Lordships observed that the expressions in previous Judgments of the Privy Council to the effect that the Zamindari though impartible was 'part of the common family property.' See Sivaganga case (1863) 9 M.I.A. 543 Stree Rajah Yanumala Venkayamah v. Stree Rajah Yanumala Boochia Venkondora (1870) 13 M.I.A. 333 or in a sense the joint property of the joint family (see Periasami v. Periasami I.L.R. (1878) M. 312 must be understood as having been made with reference to the question of succession and that though an impartible estate may for some purposes be spoken of as joint family property the co-parcenary in it which under the Mitakshara Law is created by birth does not exist. It is strongly urged for the appellant that there is in their Lordships' judgment a clear pronouncement of the absence of all co-parcenary in an impartible estate and that therefore no right to maintenance could be claimed by a member of the family on the ground that the estate is the joint property of the family. But the language of their Lordships seems to show clearly that they were then speaking of the absence of a co-parcenary which would entitle the co-parceners to partition and to prevent alienations by the holder. For they do not disapprove of the estates being spoken of as joint for purposes of succession. The subsequent decisions of the Privy Council clearly show that where a question of succession is concerned, an impartible estate may be regarded as joint and governed by the rules of succession applicable to joint property. The appellant's contention is, that, in consequence of the view enunciated in Surtax Kuari v. Deo Raj Kuari I.L.R. (1888) A. 272 the existence of co-parcenary can only be regarded as a legal fiction for the purpose of determining the heirs of an impartible estate and not as a fact from which any other deduction can be made as a consequence flowing from it. But this argument appears to us to be altogether untenable. In the first place the heir to an impartible estate has to be determined in the same manner as to partible property according to the actual nature of the property in question after finding out whether the property was separate property of the deceased holder and therefore descendible to his own heirs, that is to his issue up to the third generation and then to his widow and daughter and daughter's son and in default of any of these to the agnate and cognate relations of the dsceassd. It would be immaterial as laid down in Katama Natchiar v. The Rajah of Sivaganga,(1863) 9 M.I.A. 543 whether the deceased was a member of an undivided family or not. The succession to the property depends on the nature of the deceased's right to it and not on the status of the family to which he belonged. To find out the heir therefore the question has to be definitely answered whether the property belonged to himself either as his self-acquisition or as his ancestral property which devolved on him as single heir or whether it was the joint property of himself and other members of an undivided family. The line of succession in each case is different. In the former case, it goes to the deceased's own heirs, in the latter, it goes, in the absence of any issue, by survivorship to the eldest member in the next senior line of the undivided family to whom the estate jointly belonged, though held in possession only by a single person. For this purpose again it has further to be discovered who are members of the joint family to which the estate belongs. If, at any time, the members of the family then existing became completely divided in status with regard to all their property, including the impartible estate, then none of those branches that became so divided from the branch to which the deceased belonged would be entitled to succeed so long as there are any members in the branch or branches which subsequently continued to remain undivided with respect to the estate with the branch to which the deceased belonged. When it is necessary to determine whether the property in fact belonged to the deceased alone or not and if it did not belong to him alone what individuals constituted the undivided family to which it belonged and what individuals cannot be regarded as members of this family, it seems quite unintelligible to speak of determining the heir by means of any fiction. Facts which have been ascertained can no longer constitute a fiction; nor would the fiction of an undivided family enable the court to determine the individuals who must be regarded as having constituted the family to which the estate belonged. It would not be enough to find out with what persons the deceased or his ancestors were undivided at the time that the estate was first granted; for, though the family may be undivided at the time, the estate might still be separate property of the person to whom it was granted and descend to his own heirs. But notwithstanding this, when it has once made a descent it would become the undivided property of all his successors. It might again at any point of time become the separate property of one member and again resume the character of undivided property in the hands of his successors. And the rule of succession would vary according to the nature of the right of each holder depending on the changes in the condition of the family. All this seems to make it impossible to hold that all conception of joint property is destroyed with regard to impartible estates by the decision of the Privy Council in Surtax Kuari v. Deo Raj Kuari I.L.R. (1888) A. 272 the Privy Council has not really encouraged any such notion of the extinction of joint property with respect to them. In Raja Jagendra Bhupati Harri Chundun Mahapatra v. Nityanund Mansingh (1890) I.L.R. 18 C. 154 (P.C.) which was decided by their Lordships shortly after Surtax Kuari v. Deo Raj Kuari I.L.R. (1888) A. 272 their Lordships held that where a Zamindar left a legitimate son and two illegitimate sons and the legitimate son who succeeded subsequently died, the elder illegitimate son succeeded to the estate, by virtue of survivorship, a rule which would not apply unless the estate was the joint property of all the three sons both legitimate and illegitimate of the previous holder. Sir Richard Couch who delivered the Judgment both in this case and in Surtax Kuari v. Deo Raj Kuari I.L.R. (1888) A. 272 does not speak of the joint ownership being a fiction. In Immudiapttam Tiruguane Kondima Naik v. Periya Dorasxmi I.L.R. (1900) M. 377 decided in 1900 their Lordships speak of the Ayakudi Zamindari as 'a joint estate, though impartible' of the family. In the Udayarpalayam case I.L.R. (1905) M. 508 where the question related to the succession to the impartible Zamindari of Udayarpalayam which was claimed both by the heir to the separate property of the deceased Zamindar and by persons who would be entitled to succeed by survivorship in case the estate was joint family property, their Lordships observed 'It is settled in accordance with a ruling of this Board that when impartible property passes by survivorship from one line to another, it devolves not on the co-parcener nearest in blood, but on the nearest co-parcener of the senior line a position held by the principal respondent,' and approved in the judgment of this Court in Naraganti Achainma Garu v. Venkatachalapathi Nayanivaru I.L.R. (1881) M. 250 where the estate was held to be joint property. In Sri Rajalakshmi Deva Garu v. Sri Raja Suryanayane Dhatrazu Bahadurgaru I.L.R. (1897) M. 256. Lord Davey in delivering the Judgment of their Lordships, speaks of the estate held by the holder of an impartible Zamindari in these terms. 'Even if impartible, it may still be part of the common family property and descendible as such in each case; the widow's estate of the appellant would be excluded. The real question therefore is whether it has ceased to be part of the joint property of the family of the first Zamindar or (in other words) whether there has been an effectual partition so as to alter the course of descent.' In Ram Nundu Singh v. Janki Koer I.L.R. (1902) C. 828 their Lordships (through Lord Davey again) speaking of the succession to the Bettiya estate by a brother of the deceased Zamindar said 'but it appears that he was joint in estate with his brother and therefore was entitled to succeed him in the family property by survivorship.'' Having regard to these pronouncements of the Privy Council it is unnecessary to make citations from the decisions of the High Courts but we may refer to a sentence in Subramanya Pandya Chokka Talavar v. Siva Subramanya Pillai I.L.R. (1894) M. 316 'In determining who the single heir is according to these principles we have first to ascertain the class of heirs who would be entitled to succeed to the property if it were partible regard being had to its nature as a co-parcenary or separate property and we have next to select the single heir by applying the special rule indicated above.' If then an impartible estate retains the character of joint property for purposes of succession, does it not do so where the question relates to the rights of maintenance possessed by the members of the family to whom it belongs for purposes of succession? There can be no doubt and it is not questioned that until the decision in Surtax Kuari v. Deo Raj Kuari I.L.R. (1887) A. 272 the right to maintenance on the part of the other members of the family was based on their joint right to the estate and to be a substitute for the right to partition which they would possess if the estate were partible. The Privy Council has affirmed that basis of the right to maintenance subsequent to Surtax Kuari v. Deoraj Kuari I.L.R. (1887) A. 272. In Raja Yarla Gadda Mallikarjuna Prasada Nayudu v. Raja Yarla Gadda Durga Prasada Nayudu I.L.R. (1900) M. 147 the younger brothers of a Zamindar had obtained partition of the joint property of the family except the Zamindari of Devarakota which was held to be impartible. They subsequently sued for maintenance out of the Zamindari. The Privy Council observed 'Their Lordships fully agree with the High Court that the family of the parties to the present action has not become a divided one in consequence of the proceedings in the previous suit to which reference has already been made. It is true that in that suit a decree was made for the partition of a portion of the family property but it was a very inconsiderable portion and had no relation whatever to the Zamindari estate. As to the Zamindari estate, this Board held that it was impartible and the consequence is that the plaintiffs as younger brothers of the Zamindar retain such right or interest in respect of maintenance as belonged to the junior members of a Raj or other impartible estate descendible to a single heir.' The right to maintenance was vested by them on the same basis in the Udayarpalayam case already referred to. In Surtax Kuari v. Deoraj Kuari I.L.R. (1887) 272 itself their Lordships made citations from previous cases which based the right to maintenance on the estate being joint property (see pp. 286 and 288, Sivagnana Tevatr v. Periasami (1878) I.L.R. 1 M. 312 (P.C.) Yenumala v. Yenumala (1870) 13 M.I.A. 333 Baboo Beer Pertale Sahee v. Maharaja Rajendar Pertab Sahee (1867) 12 M.I.A. 1. In Maharana Shri Fatesangji Jasvantsanii v. Kuvar Harisangji I.L.R. (1894) B. 181 the Bombay High Court regarded the right to maintenance as standing in lieu of the right to partition. See also Himmatsing Becharsing v. Ganapatsing (1875) 12 B.H.C.R. 94 and Ramachandra Sakharam Vagh v. Sahharnm Gopal Vagh I.L.R. (1877) B. 34C In Laliteswar Singh v. Bhaleswar Singh I.L.R. (1908) C. 823 Brett, J., observes 'In consequence of the incidents of primogeniture and impartibility which by immemorial custom attached to the Raj they lose their right to enjoy a share of the family property but as compensation for that loss they are entitled to receive from the Raja certain portions of the landed property of the Raja as babuana, grant for the maintenance of themselves and their descendants in the main line.' In Venkatachella Beddiar v. Venkatachella Reddiar (1909) 20 M.L.J. 394 Wallis and Sankaran Nair JJ. held that the right to maintenance as it was understood to exist before Surtax Kuari v. Deoraj Kuan I.L.R. (1887) 272 was not affected by the judgment in that case. We have therefore no hesitation in holding that the plaintiff's right to maintenance must be decided on the footing of the estate being joint property and must depend on the question whether if the estate were partible the plaintiff would be entitled to maintain a suit for partition. Much reliance has been placed by the learned vakil for the appellant on certain decisions of this Court with regard to the question whether the successor to an impartible estate takes it as part of the effects of his predecessor. The question there did not relate to the right to succession or to maintenance. The decision in Surtax Kuari v. Deoraj Kuari I.L.R. (1887) 272 has no doubt introduced an anomalous state of matters. Where an impartible estate is the joint property of the family the members other than the holder for the time being have no such estate by birth as to entitle them to interdict an alienation by him. For purposes of alienation the holder has all the powers of an exclusive owner. Is successor then liable for all his debts as if he succeeded to his absolute property? On this question a conflict of view exists among different Judges of this Court and of the other High Courts. See Veera Soorappa v. Errappa Naidu : (1906)16MLJ499 Nachiappa Chettiar v. Chinnayasami Naicker I.L.R. (1905) M. 453 Ramasami Naik v. Ramasami Chetti I.L.R. (1907) M. 255 Raja of Kalahasti v. Achigadu I.L.R. (1907) M. 454 Harpal Singh v. Bishan Singh (1909) 6. A.L.J. 753 Harpal Singh v. Bishan Singh (1911) 8 A.L.J. 1251 Kali Krishna Sankar v. Raghunath Deb I.L.R. (1903) C. 224 and Ram Dass Marwari v. Tekait Braja Behari Singh 6 C.W.N. 879 Sivagnanam Servaigar v. Ramasawmy Chettiar (1911) 22 M.L.J. 85. We think it unnecessary to consider these decisions for the purpose of deciding the question of the right to maintenance with which we are concerned in this case. In the view we have taken it is unnecessary to consider Mr. Ganapathi Aiyar's contention that if the plaintiff has no right to maintenance on the ground of the Jagir being joint family property and not the exclusive property of the defendant he would not be entitled to it otherwise under the texts of the Hindu Law giving special rights of maintenance to various persons and decisions based on them.
6. We now proceed to deal with the question whether on the footing that the plaintiff's right to maintenance is to be regarded as flowing from his membership of the joint family to which the Jagir must be regarded as belonging, he is disentitled to it on the ground that he is too remote in relationship to the defendant, M. Ganapathi Aiyar's contention on this point is that the plaintiff is more than three degrees removed from Tirumal Rao Sahib from whom both he and the defendant are descended and that he is therefore not a joint owner of the Jagir; and reliance is placed on two texts of Kathyayana and Devala respectively and on Manu, Chapter IX sections 186 and 187 as well as on the writings of various commentators who have accepted these texts as authoritative. It is admitted that this argument is opposed to the decision of this Court in Gavuridevamma Guru v. Ramandora Garu (1870) 6 M.H.C.R. 93 as well as to the decision of the Bombay High Court in Moro Vishvanath v. Ganesh Vithal (1875) 13 B.H.C.R. 444 and that it is not supported by any decided case. It is argued that the decision of this Court is based on a misapprehension of a text of the Mitakshara and that both the decisions are contrary to the rule propounded in the texts of Hindu law. The decision in Gavuridevamma Garu v. Ramandora Garu (1870) 6 M.H.C.R. 93 related to the question of succession to an impartible estate, the question being whether the plaintiff in the suit was a co-parcener who would have been entitled to partition if the estate were partible. In the Bombay case the question was whether the plaintiff was entitled to decree for partition. It is admitted that the degree of relationship for determining the right to maintenance must be taken to be the same as for determining the right to partition in the case of a partible estate. The texts mentioned above are relied on to determine the persons who are entitled to demand partition when the family is undivided. It is desirable to set out these texts. They are as follows:--Manu Sloka 186 'To three (ancestors) water must be offered. To three the funeral cake is given. The fourth (descendant is) the giver of these (oblations). The fifth has no connection (with them).' Sloka 187. 'Always to that (relative within three degrees) who is nearest to the (deceased) sapinda the estate shall belong. Afterwards a Sakulya shall be (the heir, then) the spiritual teacher or the pupil.'
7. 'When one himself dies unseparated, his son who has not received maintenance from the grandfather shall be made participator of the heritage. He is to get therefore the paternal share from the uncle or uncle's son. The very same share shall equitably belong to all the brothers or his son also shall get. Afterwards cessations (of succession) takes place.' The commentators explain that 'his son' means the great grand-son of the person whose estate is divided because the case of a grand-son is considered and it is stated that the great grand-son's son is not entitled to any share. See Viramitrodaya Chapter II, Section 16. The Smriti Chandrika, the Madhavya, the Vivada Chintamani, the Vivada Ratnakara and Apararka's commentry on Yagnavalkya have all been relied on as adopting the text of Kathyayana. It may be noted that the Vivada Ratnakara does not note the portion stating that the property does not descend below the great grandson. Devala as cited by the Viramitrodaya runs thus : 'Partition of heritage among undivided parceners and second partition among divided parceners dwelling together extends to the fourth in descent. This is the settled law.' The Viramitrodaya interprets it thus: 'the meaning is that partition of heritage extends to the fourth degree from the proprietor.' This rule is alike applicable if coparceners dwell together in re-union by reason of the expression, ' dwelling together.' The appellant's vakil would restrict the right to partition to Tirumal Rao's son and grand-son and a refuse is to his great grand-son the plaintiff. This does not seem to be in accordance with the interpretation of Kathyayana's text by the commentators, for the plaintiff would be great grand-son of Tirumal Rao who, according to the commentators, would be entitled to a share; the three degrees having to be counted from Tirumal Rao's son. Apart from this, however, the question is whether the texts have any application to the right of partition in a family where the descendants of various branches are living together as members of one family, or whether they do not refer merely to the mode of division of the estate of a certain person amongst those who are entitled to take as his heirs, that is to cases where the question for determination is who are the heirs entitled to take a person's estate as his heirs and to divide it between them. Could they apply where a share in the estate is not claimed as the heir of a particular individual but as one of the members of a family of co-parceners all living together in joint enjoyment of the estate. The principles accepted of the Mitakshara school of law is that in the case of ancestral property a person's son, grand-son and great grand-son acquire a right by birth in it. Now suppose three or two co-parcsners, A and B jointly owing to certain ancestral property. The son, grand-son and great grand-son of each of them could acquire a right in the property by truth. A's son having a right in the property would not the son's great grand-son also acquire a right by birth in the right that he has and similarly would not B's son's great grandson acquire a right in his interest? No doubt, if the property belongs to A or B, then no doubt any descent of either below the third degree will not obtain a right by birth in it. But after A and B have sons born to them, how can their ancestral property be regarded as the property of A and B alone and not of their sons also? The texts cited refer in terms only to division among those who take as the heirs of a certain person of property which is regarded as belonging to him. Partition was ordinarily enforcible in ancient times by sons as against each other only after the father's death, though it was open to the father to make a division amongst his sons or to divide away any one of them at his pleasure. If he died without making a division and his issue all remained joint at his death and the question was who were entitled to divide what was regarded as his estate, the texts mentioned above lay down the rule applicable to such a case. Whether in the case of a person being the sole holder of ancestral property, it was regarded as belonging to him so as to make any restriction in the class of descendants who would be entitled to claim a share when the family continued undivided at his death, it is not necessary to consider. It is unlikely that it would be so regarded now. But, at any rate, where ancestral property belongs to two parsons subject to the incident of survivorship as between them, it is very unlikely that it was ever regarded as property of either of them so as to make the texts applicable. The Hindu Law does not contemplate the necessity of division taking place at any time. Suppose five generations descended from several brothers live together, they are all maintained out of the joint family property, the members of the fifth generation being quite as much in enjoyment thereof as those of the higher generations. It may be that soms of them take part in the actual management of the property; they may be utilising a part of it for some business carried on on behalf of the whole family. Now, if in any one branch all members up to the fourth generation should happen to die, is it to be said that the members of the fifth generation who were till then in the joint enjoyment would cease to be entitled to any right in the property? The principle applicable to such a case is really that applicable to joint owners and seems to have nothing to do with any rule of Sapindaship. Again, if the texts in question are to be applied, it is by no means easy to determine from whom the generations are to be counted. If, at any point of time, the estate vested in a single person, it may be suggestsd that the counting should be from him : but what if it is not possible to trace any single individual in whom it was vested within living memory. No assistance can be derived from the texts in such a case. Nor is the matter free from difficulty even where such a person can be got at. Suppose A has two sons, B and C; and each of them has several generations of issue, Bl, B2, B3, B4, C1, C2, C3 and C4. Suppose B, B1, B2 and C, C1 and C2 are all dead, then according to the texts if the descent is to be cast from A, neither B3 and B4 nor C3 and C4 would have any right to A's estate. The last texts do not provide for any one else being taken as the starting point from which the descent is to be cast, although an attempt was made in the Madras case to introduce another rule, to which we shall presently refer. Not text-writer has been cited who has applied the rule to determine the limits of coparcenary right where several generations of co-parceners have been living together as one family. Chandeswara says that Kathyayana's text is applicable only when partition not having been made, property, not enjoyed by one co-heir is solely enjoyed by another residing in the same province; that is, the rule is one of limitation for the right to enforce partition when the co-parcener claiming it has not been in joint enjoyment, the period of limitation being not a certain number of years, but be determined with reference to the number of generations that have been out of possession. Subodhini, a commentary on the Mitakshara, seems to admit that the right to partition may be carried on even beyond the great grandson. See West and Buhler, p. 652 and Stokes's Digest of Hindu Law Books p. 355. According to the Vyavahara Mayuka the text of Devala is applicable only while separated co-parceners live together. A longer period of limitation seems to have been allowed where the branch claiming partition was not living in the same province. In such a case, the right to claim partition was allowed for six generations after the original owner. See Colebrooke's Hindu Law, Vol II, page 512, Sir. T. Strange's Hindu Law, pages 327 and 396 and also T.L. Strange's Manual of Hindu Law para 347. In the Bombay case already referred to Moro Visvanath v. Ganesh Vittal (1873) 10 B.H.C.R. 444 one Nahav was the original acquirer of the property. The plaintiffs who claimed partition were beyond, while the defendants were within, the fourth degree from him. The plea on the merits was that the parties had been in a state of separation for 50 years: but it was also urged by Mr. Mandlik that after three steps of descent from the acquirer of the family property, a claim to partition would cease. This contention was not accepted. West, J. observed 'where two great grand-sons lived together as a united family, the son of each would, according to the Mitakshara Law, acquire by birth, a co-ownership with his father in the ancestral estate; yet, if this argument is sound, this co-ownership would pass altogether from the son of A or of B, as either happened to die before the other. If a co-parcener should die leaving no nearer descendant than a great grand-son, then the latter would, no doubt, be excluded at once from inheritance and from partition by any nearer heirs of the deceased, as, for instance, brothers and their sons; but where there has not been such an interval as to cause a break in the course of lineal succession, neither has there been an extinguishment of the right to a partition of the property in which the deceased was a co-sharer in actual possession and enjoyment.' The case put by the learned Judge seems to be one where the acquirer survives three generations of issue living in common-sality with him; in such a case, no doubt, the fourth generation of issue would not acquire any right in the property which is his own. The learned Judge does not deal with the case where the property is ancestral. The case was actually decided on the ground that the family must be regarded as having been divided. Nanabhai Haridas, J. refers to the texts of Kathyayana and Devala and criticises the interpretation put on the latter by the Mayukha which regards it as applicable to the case of re-united co-parceners only. He concludes 'Upon a consideration of the authorities cited, it seems to me that it would be difficult to uphold the appellant's contention that a partition could not, in any case (other than that of absence in a foreign country) be demanded by descendants of a common ancestor, more than four degress removed, of property originally descended from him.' He says that persons beyond the fourth degree would also be entitled to demand partition in such a case unless the three generations immediately below the person from whom it descends died before him. If the acquirer dies and the property vests in others, the issue of the latter also would acquire a right by birth.' He does not say, however, that, where the property is not owned by a person solely but along with others, the mere fact that a co-parcener, in one line descended from him is more than three degrees removed from him or from any descendant in that line, would destroy the right to claim a partition along with the co-parceners in another line. The case is no authority for any limitation to the right to partition where serveral generations of different lines have always lived together. In the Madras case, the plaintiff who claimed to succeed to an impartible estate was the nearest sapinda of the deceased holder. The plaintiff was the sixth in descent from one Bapam Dora who was the acquirer of the Zamindari. The deceased holder was one degree further removed from him in the line of descent. It was contended that the plaintiff was not entitled to succeed to the estate and that the deceased holder's widow was the proper heir. This contention was negatived. The learned Judges Scotland C.J. and Innes, J., held that, the family being undivided, the widow had no title. They rejected the contention that only near sapindas of the deceased, that is, sapindas within three generations, were joint owners of the estate. They say 'the limit of the co-heirs must be held to include undivided collateral relations, who are descendants in the male line of one who was a co-parcener with an ancestor of the last possessor. For, in the undivided co-parcenary interest, which vested in such co-parcener, his near sapindas were co-heirs and when, on his death, the interest vested in his son, or other near sapinda in the male line, the near sapindas of such descendants or descendant became in like manner co-heirs with them or him and so on, the co-heirship became extended, the near sapindas down to the last descendent. This would practically let in all the descendants without any limitation of degree. They then go on to say 'obviously, therefore, as long as the status of non-division continues the members of the family who have, in this way, succeeded to a co-parcenary interest are co-heirs with their kindred who possess the other undivided interests of the entire estate and one of such kindred and his near spaindas in the male line cannot be the only co-heirs, until by the death of all the others without descendants in the male line to the 3rd degree, he has, or he and they have, by survivorship acquired the entire right to the heritage as effectually as if the estate had passed upon an actual partition with the co-heirs.'
8. Mr. Mayne understands the last passage to import that the continuance of the co-parcenary interest is subject to the condition that 'no person who claims to take a share is more than 3 steps removed from a direct descendant who has taken a share. Whenever a break of more than three degrees occurs between any holder of property and the person who claims to take next after that holder, the line ceases in that direction and the survivorship is confined to those collaterals and descendants who are with in the limit of 3 degrees.' The learned author seems to overlook the fact that each descendant as soon as he is born takes a share in what is already vested in his own father and he has not got to claim it as the share of a person more than 3 degrees removed from himself. When the son, grand-son and great grand-son of a co-parcener A die leaving a son of the great grand-son, the shares vested also in them have already been vested the son of the great grand-son and do not return completely to their ancestor, A. It appears to be doubtful whether the learned judges of this Court meant to lay down that the property would go entirely to another branch although descendants in a lower degree than the 3rd might be left in one branch. At any rate, such a view does not seem to be countenanced by the texts relied on. G.C. Sarkar in his work on Hindu Law, 3rd Edition, page 196, says that 'A male descendant in the male line, however low in descent acquires a right by birth to both ancestral and self-acquired property of a paternal ancestor,' and he proceeds to say that 'if the 3 intermediate descendants were to die during the life-time of the owner of an ancestral property, the rights of the 4th descendant would not be in the least affected by that circumstance.' The rule, he says, would be different if the paternal ancestor is separated from his descendants and not re-united with any of them and there is no son or grandson or great grand-son alive at the time of his death but only great great grand-son.' In Naragunti Lutchmee Devamah v. Venjama Naidooo (1861) 9 M.I.A. 66 a claim of heirship to an impartible palayam by a collateral relation in the 4th degree of descent from the common ancestor was upheld against the widow, the deceased owner being a descendant of the 5th degree; but it was observed in Gavuri Devamma Garu v. Raman Dora Garu (1870) 6 M.H.C.R. 93 that there was apparently some special circumstance in the case which would make it possible to contend that the question was not directly decided by the Privy Council. In Ratna Daher v. Modhoo Soodan Mahapatur (1878) 2 C.L.R. 328 the Calcutta High Court held that an unseparated grand-father's great grand-son's grand-son would exclude a widow from inheriting the estate and Govuride-vamma v. Ramandora Garu, was relied on in support of the position. It is, of course, unnecessary for the purpose of this case to decide whether a gap of 3 generations in any one line of coparceners would prevent the lower descendants of that branch from claiming a share of the co-parcenary property as there was no such gap in this case. According to the principles and texts of the Hindu Law, such a gap would not affect the rights of descendants of the 4th and other generations. We see, at any rate, no ground for countenancing the contention that, even where there is no such gap, the descendants of persons removed more than 3 degrees from an ancestor are not entitled to take by survivorship on the extinction of the members of another branch descended from him. Such a rule derives no support from the writers on Hindu Law and is inconsistent with the principles of that law and un workable in practice besides being admittedly opposed to the authority of decided cases. We therefore hold that the plaintiff in this case would not be disentitled to partition if the estate were partible and is therefore not disentitled to maintenance.
9. But, then, it is argued that, although this rule might be correct if the plaintiff were the aurasa son of his father, the position is different, as he is an adopted son, because it is urged that in the case of an adopted son the sapinda relationship extends only to three degrees in the adoptive family and that therefore the plaintiff is not a sapinda of the defendant. In support of this, reliance is placed on the authority of Dattaka Chandrika, Section 3 Pl. 18 to 24 and of Dattaka Mimamsa C. 6 Pl. 32 to 38. It is not necessary to deal with this argument at any length because it is opposed to the authority of the Mitakshara, chapter I, Section 11, PL 30 and 31 according to which an adopted son, being one of the six superior classes of sons, takes the inheritance of his father's sapindas and samanodakas. Besides, the question is, in our opinion, really concluded by the decisions of the Courts. The texts were examined at great length by Hobhouse, J. in a Full Bench decision of the Calcutta High Court, Gurugovind Sehamandal v. Anendlal Ghose Mazundar (1870) 5 B.L.R. 50 and it was pointed out that the provisions of Section 3 of Dattaka Chandrika apply to the adopted son quoad the performance of funeral rites and these only. Verse 1 of the section expressly says. 'Next, the funeral rights, performed by a son given, are determined.' The subject of inheritance is treated in Section 5. In that section it is expressly laid down that an adopted son is a heir to the kinsmen of the adoptive father where he is possessed of good qualities. The possession of good qualities is not now insisted on as a condition precedent to the right to the inheritance. Shyamacharan Sircar has elaborately examined all the original authorities on the question in his Vyavastha Chandrika. Manu Baudhayana, Gautama, Kalikapurana and Brihaspati are all cited as authorities in favour of the adopted son's right to inherit to the kinsmen of the adoptive father; the authority of Sir William Macnaghten and of the author of Dvita Nirnaya as well as the opinions of the Pandits are referred to in support of the opinion. The Mitakshara is also construed as supporting the claim of the adopted son to stand in the same position as an aurasa son. Mr. Ganapathi Aiyar has contended that verses 30 and 31 of Section 11 of the Mitakshara have been mistranslated by Colebroke and that verse 31 does not in, reality declare the adopted son's right to succeed to the sapindas and samanadakas of the adoptive father but only declares him in conjunction with the five other superior classes of sons to be both a heir and a kinsman of the father. We are altogether unable to accept this contention. Kullukha Bhatta, one of the commentators of Manu, has interpreted the text of Manu expounded by Vignaneswara in verses 30 and 31 in the sense in which those verses have been translated by Colebrooke and the author of Vyavastha Chandrika has also understood the verses in the same sense. See pages 179 and 180. In Tara Mohun Bhuttacharjee v. Karipa Moyee Debia (1868) 9 W.R. 423 an adopted son was held to be entitled to succeed to the estate of a collateral who was 5th in degree from the common ancestor. The learned Judges Loche and Hobhouse, JJ. observed: 'With regard to the question of right of an adopted son to succeed collaterally as well as lineally,' we think it sufficient to quote the Privy Council Decision in the case of Shumboo Chunder Chowdry, Sutherland's Privy Council Judgments 25, which ruled that, according to the authorities on Hindu Law and the weight due to them, an adopted son succeeds not only lineally but collaterally to the inheritance of his relations.' In Paddo Kumaru Debee v. Jaggath Kishori Acharjee I.L.R. (1879) C. 615 the Calcutta High Court again held that the adopted son succeeds to the sapinda kinsmen of his father and that as regards the relationship of sapindas there is no difference between the adopted son and the natural son. On appeal the Judicial Committee of the Privy Council took the same view. See Puitnzkumzri v. The Court of Wards (1881) I.L.R. 8 C. 303 (P.C.). In Mokundo Lal Roy v. Bykunt Nath Roy I.L.R. (1880) C. 289 Morris and Prinsep, JJ. held that an adopted son was not precluded from inheriting the estate of one related lineally, although at a distance of more than 3 generations from the common ancestor. In Dinonath Mukerjee v. Gopal Churn Makerjee (1885) 9 C.L.R. 379 an adopted son who was 4th in degree from the common ancestor was held to be entitled to inherit to a collateral agnate and it was also held that the position of an adopted son was identical with that of an aurasa son in matters of inheritance. See also the Dattaka Mimamsa Section 6, PL 53, Vyavastha Dharpana page 967. The decided cases have all been collected in G.C. Sircar's work on Adoption, pages 305 to 307. Our conclusion is that the plaintiff's rights stand on the same footing as if he were an aurasa son of Lakshmana Rao. In the result the decree of the lower Court awarding maintenance to plaintiff must be affirmed. We cannot agree with the contention that there is any admission of the plaintiff restricting the right to maintenance to three generations. We dismiss the appeal with costs.