Krishnaswami Ayyangar, J.
1. This second appeal arises out of a suit instituted by the two sons of one Alagu Gounder by his second wife against his two sons by his first wife. Alagu Gounder had married two wives, Kasi Ammal and Onnammal. On 28th November 1934 he effected a partition of the family properties but reserved no share for himself. At this date he had one son Alagu Gounden by his senior wife, Kasi Ammal, and two sons Perumal and Ramaswami by his junior wife, Onnammal. They were all minors. The scheme of the partition was to allot one share to Kasi Ammal and her son defendant 1 and two shares to Onnammal and her two sons, the plaintiffs in the present suit. He retained for himself a few items of properties for his own maintenance but without power of alienation. After his lifetime these properties were to be taken by his three sons in equal shares. The possibility of male children being subsequently born was contemplated and to meet that contingency the following provision was inserted in the deed:
Male children who might hereafter be born out of your (the two wives Kasi Ammal and Onnammal) lions should be provided for out of the shares allotted to the respective families.
2. The word 'families' occurring here has reference to the two branches represented by the two wives of Alagu Gounder. The meaning of the clause is that if a son should be born in future to either of his wives that son should get his share out of the properties allotted to his own mother and uterine brother or brothers under the partition deed and not from out of the properties allotted to the other branch. Alagu Gounder died in 1989. The plaintiffs who are the two sons by his junior wife instituted the suit for the recovery of two-thirds share in those properties which had been reserved for the maintenance of the father, under the partition deed. The defendants were (1) Alagu Goundan the first son by the senior wife Kasi Ammal who had been born before the date of the partition, and (2) another son, by the same Kasi Ammal born on 18th November 1935, nearly a year after the partition. The contention of the subsequently born son who is the appellant in the second appeal is that he is entitled to have the partition reopened as no share had been set apart for the father at the partition. He relies upon the principle of Hindu law stated at p. 381 of Mulla's Hindu Law to the following effect:
Where the father has not reserved a share for himself at a partition with his sons, a son who is born as well as begotten after the partition is entitled to have the partition reopened and to have a share allotted to him not only in the property as it stood at the time of the original partition, but in the accumulations made with the help of that property.
3. This statement of the law is practically the same as that laid down in Chengaima v. Muniswami (1997) 20 Mad. 75. The correctness of this proposition so far as it goes has not been challenged before us and indeed, it appears to be amply supported by authority. One of the contentions advanced in the Courts below was that on a true construction of the deed it must be held that a share had really been allotted to the father and that the rule of law relied on cannot therefore be invoked. The lower appellate Court has not accepted this contention and I am of opinion that taking the document as a whole it cannot be said that what was retained by the father was anything but a provision for his maintenance. It was certainly not a share in the property because this provision is not only limited to the duration of his life but is immediately followed by the express statement that on his death his sons should divide the properties equally among themselves.
4. Here then we have a case where a partition was made by the father by dividing the family property amongst his sons, but reserving no share for himself. The appellant who was begotten and born after the partition is obviously within the rule stated above, and is prima facie entitled to have the partition re-opened and obtain for himself a share equal to that of his brothers. Mr. Ramamurthi on behalf of the respondents contends, however, that the rule has been too broadly enunciated and according to him, it requires to be qualified. It is said that the after-born son cannot re-open the partition even when the father had reserved no share for himself, if the father had made some other provision for some share being given to him and that provision is not unfair. It is argued that in the present case the direction that the future born son should get his share out of the share allotted to his uterine brother or brothers is such a provision and that it takes away his right to have the partition re-opened. No authority has been cited in support of the qualification contended for by the respondent's counsel. Reference was made to the decision of Ranade J. in Ganpat v. Gopalrao (1999) 23 Bom. 636 where the facts were as follows. In 1875 one Venkatrav who had at the time three sons effected a division of the family properties by allotting an one-third share to his eldest son and keeping the remaining1two-thirds in his own possession for the benefit of his two other minor sons. In 1880 Venkatrav had another son born to him and that son instituted a suit in 1895 for a fresh partition of the whole of Venkatrav's properties ignoring the partition of 1875. The learned Judge held that the plaintiff was not entitled to have a fresh partition though the eldest son of Venkatrav had received an one-third instead of an one-fourth share to which alone he was entitled. The suit was instituted after the death of Venkatrav. After stating that the general rule of Hindu law as expounded by the Mitakshara, Mayukha and the Smiritichandrika, is that a son born after partition has no claim on the wealth of his separated brother and that he has a preferential claim on the wealth of his parents only, the learned Judge observed as follows:
The somewhat vague texts of Vishnu and Yajnavalkya, which direct separated brothers to give a share to an after born son, apply to sons who have no provision made for them, and have further been explained by the commentators as applicable only to the case of posthumous sons. In the present case, there has been no partition between the brothers. The father only cut off one of his sons with a separate provision, and retained the rest of the property in his own charge and management for the sons of his younger wife. All branches of the family gave effect to this understanding for over twelve years, and it cannot now be disturbed at appellant's instance. His claim can only be made against respondents 2 and 3, who lived with their father in union, and with whom he himself has been all along living as a member of a joint family.
5. (The italics are mine). It is quite clear that the facts of this case are totally different from those of the present, because the effect of the partition was to separate the eldest son from the family, the other members, namely, the father and his two other sons living and continuing to live in union. It is not a case where the father had not reserved a share for himself at the partition. Indeed, the contrary is implied from the fact that the family properties other than that allotted to the eldest son were retained in the hands of the father who with his two other sons still constituted a joint family. It may be that he intended that the two-thirds in his hands should be taken by his two sons who remained with him. But if the question of their rights inter se were raised, the only answer would be that the father and his two sons should share the properties retained in his hands. It is abundantly clear from the context that the learned Judge in using the words in italics was only paraphrasing the rule of law laid down in Chengaima v. Muniswami (1997) 20 Mad. 75 and accepted as correct in all the later cases and the text books. I am unable to agree that these words lend support to the qualification for which Mr. Ramamurthi has contended.
6. The result is that the rule of law as stated in Mulla's Hindu Law applies to the facts of the present case. The appellant is an after born son and his father Alagu Gounder had not reserved a share for himself. The consequence is that the appellant is entitled to have the partition re-opened. In this view the decision of the Subordinate Judge cannot stand. The appeal is accordingly allowed and the decree of the District Munsif restored with costs here and in the lower appellate Court payable by respondents 1 and 2.
7. I agree. I am adding a few words because I should like to make it clear that we are being invited to engraft a new rule of Hindu law on to the principles relating to sons born after partition. The position with regard to sons born after partition is well established to-day. It is stated in Mayne's Hindu Law, para. 420:
If the father had divided the whole property among his sons, retaining no share for himself, then the sons, with whom partition was made, must allot from their shares a portion equal to their own to an after born son.
8. In this case I agree that there was no allotment of shares to the father because all that was arranged was that there should be provision for his maintenance during his lifetime. But it is argued by the learned counsel for the respondents that inasmuch as the partition deed did make provision in anticipation for a son born after partition, that arrangement should stand provided it was a fair arrangement. That may be a sound rule of common-sense, but there is no authority for it and none has boon cited before us. The decision in Ganpat v. Gopalrao (1999) 23 Bom. 636 to which my learned brother has referred is on totally different facts and it is interesting to note that the learned Judge when giving judgment expressly (at page 641) mentions that the feature of the case before him was that there was no partition between the three sons of Venkatrav (the father) in which Venkatrav left no share for himself. I should be very reluctant except constrained by clear authority to. hold that there was any rule of Hindu law relating to this matter which involved a consideration of what was and was not a proper provision to be made for a potential post partition son or sons. I prefer the rule as it stands and I agree with my learned brother that that rule to-day is clear. The learned Judge has decided this case on the basis that the provision which had been made for the post partition son was fair. In my opinion he erred. It may be pointed out that under the arrangement in the partition the appellant would have got one-sixth only whereas under the law as I understand it he gets one-fourth. In so deciding the learned Judge has done the v8ry thing to which I have referred, namely, he has brought into existence a new rule of Hindu law. I accordingly agree that this appeal should be allowed and with the order proposed as to costs.