JUDGMENT

Abdur Rahim, J.

1. This is an appeal preferred by the 1st defendant in the suit against the decree of the Court of the Temporary Subordinate Judge of Ramnad declaring that the partition made of the family properties during his life time by the 1st plaintiff, the appellant's father is valid and binding upon the appellant. The 1st plaintiff died after the institution of the suit and is represented by the 3rd plaintiff (2nd respondent) his widow, the 2nd plaintiff (1st respondent) being minor grandson of his.

2. The first question argued before us relates to the power of a Hindu father to effect a partition of ancestral family property without the consent of his sons. It has been held in this Court as far back as 1880 in Kandasami v. Doraisami Aiyar I.L.R. (1880) M. 317 that the father is vested under the Hindu Law with such authority upon certain conditions and this ruling has been mentioned with approval in a number of subsequent decisions of this Court (see Karuppannan Chetti v. Bulokam Chetti I.L.R. (1899) M. 16 Visalakshi Ammal v. Sivaramien I.L.R. (1904) M. 577 s.c. 11 M.L.J. 310 and Roop Lal v. Lakshmi Doss I.L.R. (1905) M.1 and also by the Bombay High Court in Ganpat v. Gopal Rao I.L.R. (1899) B. 636. The learned Advocate General has however argued that the decision in Kandasami v. Doraisami Ayyar 2 is wrong and is based upon an erroneous interpretation of the Mitakshara. The chief basis of his argument is that Mr. Justice Muthusami Aiyar in whose judgment the authorities on the subject are discussed, over-looked Section 5 of chapter I of the Mitakshara where it is stated in the first paragraph The distribution of the paternal estate among sons has been shown; the author next propounds a special rule concerning the division of the grandfather's effects by grandsons. It is contended that this shows that the power of the father to make a partition at his pleasure which is spoken of in Section 2 refers only to his self acquisitions and not to ancestral properties. The whole scheme of the Mitakshara was very carefully analysed by Phear and Morris, JJ. in Laljeet Singh v. Rajcoomar Singh (1878) 12 Beng. L.R. 373 and there can be no doubt as they have pointed out that Section 2 deals with partition of property generally whether ancestral or self-acquired. The scope of the section is indicated in the first sentence of the paragraph which says At what time, by whom and how, partition may be made, will be next considered. Paragraph 6 expressly refers to the distribution of property which is not acquired by the father. It says This unequal distribution is allowed in respect of his self-acquired property. But, if the wealth descended to him from his father, an unequal distribution at his pleasure is not proper; for equal ownership will be declared. The effect of this paragraph read with the preceding paragraphs is that the father may at his pleasure make a partition. of the property in his hands, but his discretion as to the shares to be given to the sons is unrestricted with reference to property acquired by himself, while he is bound to divide equally between his song the ancestral property. The four periods of partition are mentioned in paragraph 7. That, as pointed out in Nagalinga Mudali v. Subramaniya Mudali (1880) 1 M.H.C.R. 77. refers not merely to the self-acquired but also to ancestral property. The main scope of Section 5 on the other hand is to define the rights of the father and the son in ancestral property. It lays down the rule as to how the shares of the sons are to be calculated in such property and also provides that with respect to it, that partition can be demanded by the sons as well and does not depend merely upon the father's choice. The learned Advocate General has referred us to a dictum of the Judicial Committee of the Privy Council in Brijraj Singh v. Sheodan Singh I.L.R. (1913) A. 346 : All that is stated there is that the head of the family has no right to make a partition of ancestral property by a will. The present is not such a case. On the other hand, the Privy Council in a recent case reported in Ramkishore Kedarnath v. Jai Narayan Ramraohhpal I.L.R. (1913) C. 966 recognise the authority of the father to make a partition which would bind his minor sons under certain circumstances and in support of the proposition they refer to a previous ruling of theirs reported in Balkishen Das v. Ram Narain Sahu I.L.R. (1903) C. 738. Though there is not to be found any express decision on the exact point under consideration excepting that contained in Kandasami v. Doraisami Ayyar 1 that case has been throughout treated as correctly laying down the law so far at least as this presidency is concerned, by the learned judges of this Court as well as by the authoritative modern writers on Hindu Law, such as Mayne (See paragraph 492), Jolly (See his lectures, pp. 97 and 98) Sir John Trevelyan (see his Hindu Law page 327). As regards commentaries other than the Mitakshara, Smriti Chandrika (See Chap. 2 Section 1, paragraphs 20 to 24) which is of special authority in this presidency support the view taken in Kandasami v. Doraisami Ayyar I.L.R. (1880) . M. 317. So also does Subhodini (See foot-note to paragraph 7, 8. 2 chapter I of Colebrooke's Mitakshara) and I do not think that Saraswati Vilasa (see paragraphs 215 and 216) and Vivada Ratnakara (See Chapter, II, page 164 of Setlur's translation) to which we have been referred support the contention an behalf of the appellant. As for Apararka and Viramitrodaya, they are not authorities in this presidency and cannot usefully be referred to on the subject when the view taken by the learned author of Mitakshara is not open to any real doubt.

3. The partition by the 1st plaintiff in this case was made in three equal shares among his sons and himself and the only way in which its fairness was sought to be impeached was that the 1st plaintiff should not have set apart a portion of the family property for the conduct of certain charities. It is found by the learned Subordinate Judge that the provision for the charities was. of a reasonable character and in accordance with what has been the practice of the family for a long time past. The appellant himself in his turn has been conducting these very charities. I may also mention that Mr. Rangachariar, the learned pleader for the respondent stated that he would not object on behalf of his client to the appellant receiving his share if he so wanted, in such of the properties set apart for the charities as have not been irrevocably dedicated. The appeal fails and is dismissed with costs.

Phillips, J.

4. The main question for decision is whether a father of an undivided Hindu family can make a partition of ancestral property between himself and his sons without the consent of all the sons. This question was definitely answered in the affirmative by this Court in Kandasami v. Doraisami Ayyar I.L.R. (1880) M. 317. This decision was based on Mitakshara Chapter 1. Section 2 relating to partition of property by a father. The learned Advocate General, however, relies on Section 5 para 7 of the same chapter as showing that Section 2 is only applicable to selfacquired property. No doubt in Kandasami v. Doraisami Ayyar I.L.R. (1880) M. 317 Muthusami Iyer, J. does not specifically refer to Section 5 of Mitakshara Chapter I, but in no reported case has the decision been disputed until now. On the other hand so long ago as 1862 in Nagalinga Mudali v. Subramania Mudali (1862) I.M.H.C.R. 77 Scotland C.J. remarks. We must consider the Mitakshara Chapter 1 Section 2 para. 7 as applicable to the law governing the division of property generally and S. V para. 8 and 11 as applying to divisions of ancestral property and in his judgment he quotes Sir Thomas Strange on Hindu Law (1 page 179) With the exception of two cases, partition among the Hindus in the lifetime of the father, whether of ancestral or of acquired property would seem to be at his will and not at the option of his sons. The view of Scotland C.J. was approved in Laljeet Singh v. Rajcoomar Singh (1873) 12 Ben. L.R. 373 wherein Section V was referred to as well as Section II. Phear J. remarks with reference to S. II paragraph 7. Nothing appears here to limit the application of this passage to the partition of the father's selfacquired property. There is no reported ruling which follows Kandasami v. Doraisami Ayyar I.L.R. (1880) M. 317 but it is quoted with approval in Visalakshi Ammal v. Sivaramien I.L.R. (1901) M. 577. 14 M.L.J. 310 Roop Laul v. Lakshmi Doss I.L.R. (1903) M. 1 and Singa Iyer v. Venkataramana Aiyer (1913) 23 I.C. 6. In these circumstances it is evident that a father's power to partition ancestral property has been recognised as being according to law in the Presidency and apparently also in Bengal for the last 50 years and it would require very strong proof that it was wrong to warrant us in disturbing this long established proposition. The learned Advocate General has referred to several commentaries on the Mitakshara and other authors on Hindu Law and has been able to refer us to passages which state that the father's power of partition under Section 2 is only with respect to selfacquired property. Vide Saraswati Vilasa paragraphs 215, 216 and 217, Vivada Ratnakara p. 164 of Setlur's Translation, Visvarupa p. 5 of Sitarama Sastri's translation, Ram Charan Mitra on Partition (Tagore Lectures 2 Edition) pages 334--335, Vyavastha Chandrika II, p. 212 and Sarkar's Translation of Viramitrodaya pages 44--69. These passages, however, as it appears to me, all refer to the father's power of making an unequal partition referred to in Section 2 paragraphs 1 and 3, as also does Paragraph 7 of Section 5. In not one of these authorities is there any assertion that the father cannot make an equal partition of ancestral property. Section 2 is the only section which deals with a father's right to partition and if under that section he acquires no right to partition ancestral property, there is no other provision in the Mitakshara which gives him any right to such partition whether with or without the consent of the sons. So far therefore from thinking that there are good grounds for doubting the decision in Kandasami v. Doraisami Ayyar I.L.R. (1880) M. 317. I think it is quite correct. The remark in Brijraj Singh v. Sheodon Singh I.L.R. (1913) A. 387 that Balwant Singh, although head of the family, had no right to make a partition by will of ancestral property is a mere dictum of the Privy Council and as such must be strictly construed and not extended to refer to a partition, not by will and during his lifetime, a question which was not under consideration in the case. The only other ground of appeal is that the partition is bad because certain property is set apart for charitable purposes. Only 13 acres out of 190 have been so set apart and there is evidence, including appellant's deposition, that the charities referred to in the partition deed have been carried on by appellant's family for a long time past and appellant admits that he himself has been conducting the charities and the deed itself recites that the major portion of the property had been dedicated to these charitable objects by appellant's grandparents. As 1st plaintiff who made the partition is dead and cannot give evidence this recital is evidence of the dedication. Such a provision for charity in the partition will not invalidate it. I agree that the appeal should be dismissed with costs.