1. In Appeal Suit No. 170 of 1901, three learned Judges of this Court Subramania Iyer, Benson and Bhashiam Iyengar JJ. decided that succession in a re-united family governed by Mitakshara Law is by survivorship, and that the son of a re-united member of the family is Re-united'. They say that the contrary contention is not supported by any text of Hindu Law and is not in accord with the principles of the Mitakshara Law.
2. This decision, if we follow it, is sufficient to dispose of the present case. We have here a contest as to the succession to the son of re-united member of a family, the widow: claiming on the one hand and on the other the brothers of her husband's father, re-union having been effected between the brothers before the birth of the deceased.
3. If the decision, in Appeal Suit No. 170 of 1901, is to be followed, the widow's claim cannot be supported and the appeal must be allowed, and we are asked to decline to follow that decision and to hold that in a re-united family there is no survivorship and that no one can be 're-united' who was not one of those who actually divided and again joined together.
4. The able argument which we have heard on behalf of the respondent has shown in a clear light the difficulties surrounding the question of succession in a re-united family, but has not convinced us that we ought to decline to follow a decision of three Judges of the Court, two of them Hindus and Brahmins.
5. It was argued that in the case of Rama-swamy v. Venkatesan 10 M.k 440 the learned Judges declined to apply the law of survivorship, but we do not think that that is so. The principle which they applied is not very clear from the report, but as we understand the decision, they regarded the succession of the uterine brother not re-united as an exception engrafted on the ordinary rule that a surviving re-united parcener takes the property of one deceased while in re-union with him: and for this view authority may be found in the Mitakshara, Chapter II, Section IX, 5, Stokes' Hindu Law Books, vide also Sarvadikari's Hindu Law (Edition of 1882) at page 958. September 14, 1909.
6. There is no reported decision of any of the High Courts in India or of the Privy Council which takes the view for which Mr. Sundra Iyer contends, while there are dicta in some cases which may be said to support the opposite conclusion [vide Pran-kishan Paul Chowdry v. Mothoora Mohan Paul Chowdry 1 Ind. Jur.73 and Josoda Koer v. Sheo Pershad Singh 17 C.b 33
7. We are, accordingly, not prepared to dissent from the decision in Appeal Suit No. 170 of 1901 and we allow the appeal and dismiss the suit with costs throughout.