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 Saheb, who was the grandson of the plaintiff's grand father's grandfather, Tirumal Rao Saheb. Tirumal Rao had two sons, Srinivasa Rao and Venkata Rao. The defendant is the grandson of Venkata Rao by adoption and the plaintiff is the great grandson of Srinivasa Rao. The jagir of Arni 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 Impartyble Estates Act. The plaint alleges that the jagir is a joint ancestral hereditary estate oh 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 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 11 8 a month and arrears to the period claimed at the same rate.
3. On appeal, Mr. Ganapathi Aiyar, the learned Vakil for the appellant, repeated the contentions 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 Kuari v. Deoraj Kuari 10 A.P 272 : 15 I.A. 51 and that according to that decision, the jagir must be held to be the absolute property 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. Deoraj Kuari 10 A.K 272 : 15 I.A. 51 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, Tirumal 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 sanad and awarded maintenance to Lakshmana Rao on the terras of the sanad 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 of 1871 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 Collector of Trichinopoly v. Lakkamani 21 W.R. 358 : 14 B.L.R. 115 : 1 I.A. 282 which decided that notwithstanding the absence of a permanent settlement, the holder of 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 jagir 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 sanad, 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 this contention based or a consideration of the new sanad, we must disallow it apart from the question whether the Government had any power to affect the plaintiff's rights by a sanad granted to the defendant.
5. It is perhaps doubtful whether we should allow the defendant to go back to any extent on the admission made by him in the lower Court that the jagir is an ancestral, undivided hereditary estate of the family. It was made with full knowledge of the decision of the Privy Council in Sartaj Kuari v. Deo Raj Kuari 10 A.K 272 : 15 I.A. 51. 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 Mahipati Rama Krishna Rao Bahadur v. The Court of Wards 22 M.P 383 : 26 I.A. 83 : 3 C.W.N. 415 to be applicable to the impartible estates in this Presidency. In Sartaj Kuarji v. Deoraj Kuari 10 A.K 272 : 15 I.A. 51 their Lordships held that the son, 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 where there is no right to it.' They were of opinion that 'the foundation of the supposed restriction of 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 zemindari though impartible was 'part of the common family property' in Katama Natchiar v. The Raja of Shivagunga 9 M.I.A. 539 : 2 W.R. 31; Stree Rajah Yanumnla Venkayamah v. Stree Rajah Yanumula Boochia Vankondora 13 M.I.A. 333 : 13 W.R. (P.C.) 21 or in a sense the joint property of the joint family see Sivagnana v. Periasami 5 I.A. 61 : 1 M.L 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 that 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 air 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 have entitled 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 Sartaj Kuari v. Deoraj Kuari 10 A.K 272 : 15 I.A. 51 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 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 deceased. It would be immaterial, as laid down in Katama Natchiar The Rajah of Shivagunga 9 M.I.A. 539 : 2 W.R. (P.C.) 31, 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 properly 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 (he 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 as well at any point of time become the separate property of one member and again resume the character of undivided property in the hand8 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 Surtaj Kuari v. Deoraj Kuari 10 A.P 272 : 15 I.A. 51. The Privy Council has not really encouraged any such notion of the extinction of joint property with respect to them. In Jogendro Bhupati Hurrochundra Mahapatra v. Nityanani Man Singh 17 I.A. 128 : 18 C.P 151 which was decided by their Lordships shortly after Sartaj Kuari v. Deoraj Kuari 10 A.K 272 : 15 I.A. 51 their Lordships held that when a zemindar 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 Sartaj Kuari v. Deoraj Kuari 10 A.P 272 : 15 I.A. 51 does not speak of the joint ownership being a fiction. In Immudipattam Thirugnana Kondama. Naik v. Periya Dorasami 24 M.P 377 : 28 I.A. 46 decided in 1900, their Lordships speak of the Ayakudi zemindari as 'a joint estate, though impartible' of the family. In Udayarpulayarn case Kachi Kaliyana Rangappa v. Kachi Yuva Rengappa 28 M.K 508 : 2 A.L.J. 845 : 2 C.L.J. 231 : 10 C.W.N. 95 : 7 Bom. L.R. 907 : 15 M.L.J. 312 : 1 M.L.T. 12 : 32 I.A. 26 where the question related to the succession to the impartible zemindari of Udayarpalayam, which wag claimed both by the heir to the separate property of the deceased zemindari and by parsons 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 of a position held by the principal respondent,' and approved of the judgment of this Court in Naraganti Achamma Garu v. Venkatachalapathi Nayanivaru 4 M. 250 where the estate was held to be joint property. In Sri Rajalakshmi Devi Garu v. Sri Raja Suryanarayana Dhatrazu Bahadar Garu 20 M.P 256 : 24 I.A. 118 Lord Davey in delivering the judgment of their Lordships, speaks of the estate held by the holder of an impartible zemindari in these terms: Even if impartible, it may still be part of the common family property and descendible as such in which 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 zemindar or (in other words) whether there has been an effectual partition so as to alter the course of descent.' In Ram Nundun Singh v. Janki Koer 29 C.C 828 : 7 C.W.N. 57 : 4 Bom.L.R. 664 : 29 I.A. 178 their Lordships (through Lord Davey again), speaking of the succession to the Bettia estate by a brother of the deceased zemindar 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 17 M.L 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 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 Sartaj Kuari v. Deoraj Kuari 10 A.K 272 : 15 I.A. 51 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 Sartaj Kuari v. Deoraj Kuari 10 A.P 272 : 15 I.A. 51; In Raja Yarla Gadda Mallikarjuna Prasada Nayadu v. Raja Yarla Gadda Durga Prasada Nayudu 24 M.P 147 : 5 C.W.N. 74 : 27 I.A. 151 the younger brothers of a zemindar had obtained partition of the joint property of the family except the zemindari 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 zemindari estate. As to the zemindari estate, this Board held that it was impartible and the consequence is that the plaintiffs, as younger brothers of the zemindar, retain such right and interest in respect of maintenance as belong to the junior members of a Raj or other impartible estate descendible to a single heir.' The right to maintenance was rested by them on the same basis in Naraganti Achamma Garu v. Venkata-chalapathi Nayanivaru 4 M.P 250 already referred to. In Sartaj Kuari v. Deoraj Kuari 10 A.P 272 : 15 I.A. 51 itself, their Lordships made citations from previous cases which based the right to maintenance on the estate being joint property. See Beriasami v. Periasami 5 I.A.P 61 : 1 M.L 312; Yanumula v. Yanumula 13 M.I.A. 333 : 13 W.R. (P.C.) 21; Baboo Beer Pertab Sahee v. Maharajah Rajendar Pertab Sake 12 M.I.A. 1 : 9 W.R. (P.C.) 15.; In Maharana Shri Fatesingji Jesvantsingji v. Kuvar Harisangji Fatesangji 20 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 12 B.H.C.R. 94; Ramachandra Sakharam Vagh v. Sakharam Gopal Vagh 2 B.L 346.; In Laliteswar Singh v. Bhabeswar Singh 35 C.P 823 : 8 C.L.J. 124 : 12 C.W.N. 958 Brett J. observes: 'In consequence of the incidents of primogeniture, an impartiality, which by immemorial custom attached to the Raj, they lose their right to enjoy a share of the family property, but as a compensation for that loss they are entitled to receive from the Raja certain portions of the landed property of the Raj as babuana grants for the maintenance of themselves and their descendants in the male line.' In Venkatachella Reddiar v. Venkatachella Reddiar 20 M.L.J. 394 : 4 Ind. Cas. 302 : 7 M.L.T. 31 Wallis and Sankaran Nair, JJ. held that the right to maintenance, as it was understood to exist before Satraj Kuari v. Deoraj Kuari 10 A.P 272 : 15 I.A. 51 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 properly 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 Satraj Kuari v. Deoraj Kuari 10 A.K 272 : 15 I.A. 51 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 his 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 Somappa v. Errappa Naidu 29 M.P 484 : 1 M.T. 287 : 16 M.L.J. 499; Nachiappa Chettiar v. Chinnaya Sami Naicker 29 M.P 453 : 16 M.L.J. 339 : 1 M.L.T. 272; Ramasami Naik v. Rama-Sami Chetti 30 M.P 255 : 2 M.L.T. 167 : 17 M.L.J. 201; Raja of Kalahasti v. Achigadu 30 M.P 454 : 17 M.L.J. 361; Harpal Singh v. Bishan Singh 6 A.L.J. 753 : 3 Ind. Cas. 907; Inder Sen Singh v. Barpal Singh 8 A.L.J. 1251 : 34 A.L 79 : 12 Ind. Cas. 915; Kali Krishna Sarkar v. Raghunath Deb 31 C.C 224; Ram Dass Marwari v. Tekait Brajo Behari Singh 6 C.W.N. 879 and Subba Naidu v. Nagayya 12 M.L.J. 89 : 25 M.P 424. 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 the 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. Mr. 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 Garu v. Ramandora Garu 6 M.H.C.R. 93 as well as to the decision of the Bombay High Court in Moro Vishvanath v. Ganesh Vithal 10 B.H.C.R. 444 an 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 Gavuride-vamma Garu v. Ramandora Garu 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 a 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 1856, 'To three (ancestors) water roust 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 137: '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. Kathyayana: '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 game share shall equitably belong to all the brothers or his son also shall get. Afterwards cessation (of succession) takes place.' The commentatois explain that 'his son' means the great-grandson of the person whose estate is divided because the case of a grandson is considered and it is stated that the great-grandson's son is not entitled to any share. See Viramitrodaya, Chapter II, Section 16. The Smriti Chandrika, the Madhinia, the Virada Chinta-mani, the Vinada Ratnakara and Apararka's commentary on Yajnavalkya have all been relied on as adopting the text of Kathyayana. It may be noted that the Vinada Ratnakara does not quote the portion stating that the property does not descend below the great-grandson. Devala, as cited by the Viramitra-daya, 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 is alike applicable if co-parceners 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 grandson and refuse it to his great-grandson, 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-grandson 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 as 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 accepted principle of the Mitakshara school of law is that in the case of ancestral property a person's son, grandson and great-grandson acquire a right by birth in it. Now suppose there are two co-parceners, A. and B. jointly owning certain ancestral property. The son or grandson and great-grandson of each of them would acquire a right in the property by birth. A.'s son having a right in the property, would not the son's great-grandson also acquire a light 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 descendant of either in the third degree will not obtain a right by birth in it. But after A. and B. have sons to them, how can this 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 order of descendant who would be entitled to claim a share when the family remained 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 persons 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 some 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 any one branch of 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 suggested 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 O.; and each of them has several generations of issue, B1, B2, B3, B4, C1, C2, C3, and 04. 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 03 and 04 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 Gavuridevamma v. Ramandora Garu 6 M.H.C.R. 93 to introduce another rule, to which we shall presently refer. No text-writer has been cited who has applied the rule to determine the limits of co-parcenary 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 to 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 rights 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 Mayukha, the text of Devala is applicable only where branches 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 Manual of Hindu Law; pages 327 and 396, and also T. L. grange's Manual of Hindi Law, para, 347. In the Bombay case already referred to Moro Vishvanath v. Ganesh Vithal 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 (he family property, a claim to partition would cease. This contention was not accepted. West, J., observed: 'Where two great-grandsons 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 the 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-great-grandson, 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 being in conveniently 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 Kathyavana and Devala and criticises the interpretation put on the latter by the Mayukha which regards it as applicable to the case of re-united coparceners 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 degrees 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 coparceners in another line. The case is no authority for any limitation to the right to partition where several generations of different lines have always lived together. In Gavuridevamma Garu v. Ramandora Garu 6 M.H.C.R. 93 the plaintiff who claimed to succeed to an impartible estate was the nearest sapinda of the deceased holder. The plaintiff was the sixth descendant from one Bapam Dora who was the acquirer of the zemindari. 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 coparcener 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 ex-tended, through the near sapindas down to the last descendant.' 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 sapindas 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 parson who claims to take a share is more than three 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 within the limit of three 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 three degrees removed from himself. When the son, grandson and great-grandson of a coparcener, A., die leaving a son of the great-grandson, the shares vested in them have already been vested also in the son of the great-grandson 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 third 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 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 third 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-grandson alive at the time of his death but only great great-grandson.' In Naragunty Lutchmeedavamahr v. Yengama Naidoo 9 M.I.A. 66 : 1 W.R. 30 a claim for heirship to an impartible palayam by a collateral relation in the 4th degree of descent from the common ancester was upheld against the widow, the deceased owner being a descendant of the 5th degree; but it was observed, in Gavuridevamma Garu v. Ramandora Garu 6 M.H.C.R. 93 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 Ratan Dabee v. Modhoosoodun Mohapator 2 C.L.R. 328 the Calcutta High Court held that an unseparated grandfather's great-grand-son's grandson would exclude a widow from inheriting the estate and Govuridevamna v. Ramandora Garu 6 M.H.C.R. 93 was relied on in support of the position. It is, of course, un-necessary for the purpose of this case to decide whether a gap of three generations in any one line of co-parceners 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 descend-ants 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 three 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 unworkable 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 rate 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, Section 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 samanadaka. 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, in Gurvgovind Shesha v. Anand Lal Ghose Ma-zumdar 5 B.L.R. (F.B.) 16 : 13 W.R. 49 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 I 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. Skyamabharan Sircar has elaborately examined all the original authorities on the question in his Vyavastha Chandrika. Manu Bandhayana, Gautama, Kalikapurana and Brihaspati are all cited as authorties 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 Nirnayaj as well as the opinion 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. Ganapati Aiyar has contended that Verses 30 and 31 of Section 11 of the Mitakshara have been mistranslated by Colebrooke 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 bat only declares him in conjunction with the five other superior classes of sons to be both an 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 Vijnaneswara 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 Bhuttachjaree v. Kripa Moyee Delia 9 W.R. 423 an adopted son was held to be entitled to succeed to the estate of a collateral who was fifth in degree from the common ancestor. The learned Judges, Loch and Hobhouse, JJ., observed: 'With regard to the 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 Chowdhury,. Sutherland's Privy Council judgments, page 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 Puddo Kumar Debee v. Juggaut Kishore Acharjee 5 C.P 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 Government of Bengal v. Musammat Surruff-utoonissa 8 M.I.A. 225 : 3 W.R. 31; In Mokundo Lal Roy v. Bykunt Nath Roy 6 C.P 289 : 7 C.L.R. 478 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 three generations from the common ancestor. In Dinonath Mukerjee v. Gopal Churn Mukerjee 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, p. 53, Vyavastha Dharpana, page 967. The decided cases have all been collected in G. C. Sircar's work on Adoption, pages 395 to 397. 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.