1. The suit was for a declaration that the plaintiff alone was entitled to execute the decree in Original Suit No. 21 of 1901 on the file of the Subordinate Judge's Court of Tanjore and that the plaintiff was entitled to succeed to items Nos. 2 to 5 of the plaint Schedule. The plaintiff also prayed for possession of item No. 2. The plaintiff and the 1st defendant are the sons of one Jagannatha Tawker, deceased and the 2nd defendant is their mother. The decree in Original Suit No. 20 of 1901 was obtained by Jagannatha Tawker against one Venketesa Bhat and in respect of it, Venketasa Bhat paid Rs. 8,000 into Court. The Subordinate Judge found that the plaintiff and his father Jagannatha Tawker were living together as an undivided family and that the 1st defendant was a divided member, that the sum of Rs. 3,000 deposited in Court was the self-acquisition of Jagannatha Tawker and that, therefere, the plaintiff and 1st defendant were jointly entitled to execute the decree in Original Suit No. 20 of 1901 above mentioned; that the plaintiff alone was entitled to the house item No. 2, but that the 2nd defendant should not be ejected therefrom in her life-time. Against the decree of the Subordinate Judge the plaintiff appealed to the District Court. From the appellate judgment it appears that the only point pressed was that the amount paid into Court by Venketesa Bhat in Origitial Suit No. '21 of 1901 and the house item No. 2 belonged to the plaintiff solely and not to the plaintiff and the 1st defendant jointly. The District Judge found that the said amount and the house were the self acquisition of Jagannatha Tawker and that on his death his sons became entitled to them jointly. It does not appear that any attack was made on the finding of the Subordinate Judge that the plaintiff and Jagannatha Tawker were joint and that the 1st defendant was divided from them. The District Judge appears to have accepted that finding but to have held nevertheless that the undivided son and the divided son were equally entitled to succeed to the father's self-acquisition. The only question for determination in this Second Appeal which is by the plaintiff is whether the District Judge was right in so holding; and the only other fact which need be mentioned is the undisputed fact that the properties in dispute were acquired before the 1st defendant became divided.
2. Fakirappa v. Yellappa 22 B. 101 seems to be the only reported case in which the present question has been directly dealt with. The contest there was between the united sons and a divided grandson and it was held that the former took in preference to the latter, the property both ancestral and self-acquired left by the grandfather. In that case as in the present case the self-acquired property had been acquired by the grandfather before the division by which one member left the family.
3. The only cases in this Court to which our attention has been drawn are Ramappa Naicken v. Seethammal 2 M.k 182 and Marudayi v. Doraisami Karambiar 30 M.k 343 the former being cited for appellant and the latter for the respondent. What was actually decided in Ramappa Naicken v. Sithammal 2 M.k 182 was that when the only surviving heirs to a Hindu father were a divided son and the father's widow, the divided son succeeded to the father's estate in preference to the widow. Ranade J. commenting on this case in Fakirappa v. Yellappa 22 B.k 101 observes as follows: The judgment, however, shows clearly that if there had been united sons living at the death of the father they would have succeeded in preference to their separated brothers. This comment goes perhaps too far as in the judgment of this Court there is reference to competition only between separated sons and sons born after partition. The case where as here, ' the conflict is between united sons and separated sons all of whom were, alive at the time of partition is not dealt with though no doubt the result would have been the same. In Marudayi v. Doraisami Karambiar 30 M.k 343 also the present case did not arise. There the contest was between a divided son and the divided grandsons of the deceased. The only other case relied upon by the respondents' vakil is the Sivaganga's Case Katama Natehiar v. The Rajah of Shivaganga 9 M.I.A. 539 : 2 W.R. 31. He refers to the remarks at page 609 of the report to the effect thai: self-acquired property, if the acquirer loaves male issue, will descend to that issue and argues that this implies that sons both divided and undivided are entitled to succeed equally to their father's self-acquisition, As was remarked in Fakir appa v. Yellappa 22 B.k 101 where the same argument was advanced it is clear from the context that the male issue referred to means those sons who were in union with their father at his death. It is thus clear that so far as the reported decisions go there is no authority against the appellant's contention while Fakirappa v. Yellappa 22 B.k 101 is in his favour. The latter case is referred to in Mayne's Hindu Law Seventh Edition at page 732 and evidently with approval. The learned author remarks upon the case as follows:
A grandson sued his grandfather and uncles for partition. He obtained a decree as to all the joint property bat failed as to a part which was held to be the separate property of the grandfather. On the death of the grandfather he brought a fresh suit for a share of this, contending that by descent it had become joint property. This was perfectly true, but the answer to the plaintiff was that he was no longer a member of the co-parcenary. On the grandfather's death his interest in the joint property passed to the remaining coparceners by survivorship. Their own separate property passed to his united sons as heirs and in their hands become an addition to the joint property in which the divided grandson had no interest.' The same result would, of course, have followed if the claimant had been a divided son.
4. Clause 27 of Schedule I Chapter I of the Mitakshara--Vide Stoke's Hindu Law Books page 375, runs thus. Therefore, it is a settled point that the property in the paternal or an ancestral estate is by birth although the father has independent power in the disposal of effects other than immoveables...but he is subject to the control of his sons and the rest in regard to the immoveable estate whether acquired by himself or inherited from his father or other predecessor.'
5. Clauses 9 and 10 of Section V of the same Chapter are in conflict with the above in that they lay down that a son cannot interfere with his father's disposal of his self-acquired property, although he has a right therein by birth. These clauses were considered by the Privy Council in Balwant Singh v. Rani Kishori 25 I.A. 54 and it was finally decided that a father had full power of disposition over his self-acquired property moveable or immoveable. But the dictum of the Mitakshara contained in Clause 27 of section I of chapter I and in Clause 10 of the same chapter, that the son has a right by birth in the property of the father whether ancestral or self-acquired does not appear to have been dissented from in any reported case. This being so the succession to the self-acquired property of the father would, when there was an undivided son, be by survivorship rather than by inheritance and he who took by survivorship would exclude those such as divided sons who could only take in any case by inheritance.
6. In West and Buhler's Hindu Law 3rd Edition at page 63 we find the following : Sons who have separated from their father and his family are passed over in favour of sons who have remained united with him, or were born after the separation. This is an application of the principle that a joint and undivided succession of the descendants being taken as the general rule, those who have been exceptions to it and who having been exceptions have since ceased to be so, are tereated accordingly. The rights of succession are as to their natural extent their rights as they would be in a partition made immediately on the death of the propositus.' Referring to the last statement their Lordships in Marudayi v. Karambiar 30 M.k 343 remarked that it was probably correct. On this principle it is clear that inasmuch as being already divided, he could not claim anything in such a partition the divided son is entitled to no share even in the self-acquired property of the father, for that property, immediately on the father's death becomes joint property and liable to be partitioned among the undivided sons. If the only members of the co-parcenary were the father and the, son that son on the death of the father would on the above principle take the whole.
7. In Sarvadhikari's Law of Inheritance--Tagore Law Lectures 1880, page 886 it is laid down broadly that 'sons legally separated from their father had not on his death any claim to inherit his property with a son not separated.' The same rule is found in Macnaughten's Hindu Law Vol. IT Precedents of Inheritance, Section 1, Case XII.
8. The argument that there is no text which says in so many words that the son who has remained undivided succeeds to the father's self-acquisition to the exclusion of the divided son may be met by stating that the broad principles of the Hindu Law being what they are there is no necessity for such a text. It may be pointed out, however, that for the special case of re-union after partition, the Mitakshara makes provision in chapter II Section 9 and it is clear, therefore, that the re-united sons would take their father's property to the exclusion of the sons who were divided from their father. Similarly in the Vivada Chintamani, Edition 1863 at page 304 we find Re-union can also take place between father and son. It is also proper that the title of the sons to the estate of their father should cease after the division of property and should revive after their re-union.'
9. In Vyavastha Chandrika Vol. II among precedents of partition, at page 404 we find it stated that in a Hindu family where a re-union has taken place among certain members after partition the members of the re-united family and their descendents succeed to each other to the exclusion of the members of the unassociated or not reunited branch.
10. The only opinion opposed to the above which we have been referred to is contained in Sirkar's Hindu Law 3rd Edition at page 269 where it is stated that a son who is re-united cannot claim in preference to another who remains separate. The reasons given by the author for this opinion are not easy of acceptation, and it is sufficient to say that we are unable to follow it in view of the strong authority to the contrary.
11. The rule being as above stated in the case of re-united son there can be no hesitation in applying ' the same rule in the case of sons who have never separated.
12. One final argument requires to be noticed. It is suggested that if sons have by birth an interest in their father's self-acquisition and if at the time when a son separates himself there are such self-acquisitions in existence, then inasmuch as at the partition the son cannot obtain any share of the self-acquisition, he would be entitled on the death of the father to regard them as property of which he could demand a share in the same way as if it were ordinary co-parcenery property which, for some reason or other had been omitted from the original partition. The answer is that while theoretically the sons have an interest by birth in their father's self-acquisition still, as the father can dispose of those acquisitions at his pleasure they are not co-parcenary property in the ordinary sense and it is the latter property that can form the subject of partition. After obtaining, on partition, his share of all the divisible property the separating son loses all the rights which he had as a member of the co-parcenary, and it was only as a member of the co-parcenary that he had by birth an interest in his father's self-acquisitions. All the right that remains to him with regard to his father's property is the right by virtue of his sonship to inherit in the absence of undivided sons.
13. We find, therefore, that the plaintiff as the undivided son of his father, is solely entitled to execute the decree in O.S. No. 20 of 1901 on the file of the Court of the Subordinate Judge of Tanjore and that he is also solely entitled to the house, plaint item No. 2. The decrees of the lower Courts will be modified accordingly. The first defendant will pay the plaintiff's costs in this Court. The point on which the plaintiff has succeeded was not taken in the Courts below.
14. The parties will bear their own costs, in the Courts below.