1. There was a partition between the appellant's brothers, the first and second respondents, and their deceased father before the appellant was born. At that partition the father reserved no property to himself. The lower Courts have held that the appellant is entitled to a share out of the property taken by the said respondents at the partition. The appellant was, however, not allowed a share out of certain other items of property in the hands of his brothers. Those were excluded from the partition decreed to the appellant, not because they were the separate property of the parties in possession having been acquired by them without the aid of the ancestral estate, but, as we understand the Subordinate Judge, simply on the ground that acquisitions after the partition, even though made with the aid of the property obtained at the partition, belong solely to the acquirer. This view is clearly not supported by the authorities, to some of which the Subordinate Judge himself refers. The word 'income' or 'profit' in Yagnyavalkya's text' "The visible estate corrected for income or expenditure" (as translated by Colebrooke) Stockes' Hindu Law Books, p. 395. or "the visible estate corrected by profit or loss" (as rendered by Mandlik) Mandlik's Hindu Law, P. 216 on which the Mitakshara in chapter I, Section "VI, 8 and 9, bases its conclusion on this point, undoubtedly includes accretions made to the shares taken on partition and gives to the after-born son a right to obtain his allotment out of the subsequent additions also, provided, of course, they are shown not to have been acquired without the aid of ancestral property. The principle of the rule as pointed out by Subodhini when commenting on Mitakshara, chapter I, Section VI, 9, cited above, is that so far as the after-born coparcener is concerned, the individual shares taken by the parties who made the division prior to his birth are as much patrimony after the division as before it and consequently he, the after-born son, is entitled to participate in the gain arising out of such patrimony.
2. The appellant is thus entitled to his share also out of the properties in the hands of the first and second respondents in respect of which his claim was rejected by the lower Courts. The decree passed by them must, therefore, be modified accordingly. The said respondents will pay the appellant's costs disallowed in the lower Court as well as his costs in this second appeal. But as against the third respondent the appeal is dismissed with costs.
Comments