The Judgment of the Court was as follows:

1. The facts which are not in dispute in this appeal are these:—

One Bepin Behari Dutt was the owner of certain immovable properties. He had five sons, Pasupati (Defendant No. 1), Ganapati (Defendant No. 2), Kamalapati, Gokulpati (Plaintiff) and Baidya Nath (Defendant No. 3). Kamalapati died on the 15th Falgun, 1323 B.S, leaving a minor son, Pran Gobinda and a widow, Arunabala Dasi. On 4th Sraban, 1324 B.S Bepin Behari executed a Nirupanpatra (a deed of settlement) by which he divided his properties into five shares and gave one share to each of his four sons and one share to his grandson Pran-gobinda. Arunabala died in Magh, 1326 B.S After her death Bepin Behari took charge of the person and properties of Prangobinda, Bepin Behari died in Kartik, 1328 B.S A few days after his death Pasupati, Defendant No. 1, took charge of the person and properties of Prangobinda with the consent of his three brothers. Prangobinda attained majority in 1338 B.S and died in 1339 B.S unmarried. On the 29th June, 1937 (Ashar 1344 B.S) Gokulpati instituted the present suit for possession of 4 as share of the properties left by Prangobinda after partition. Only Defendant No. 1 contested the suit. His defence is that he was joint with Prangobinda or at least “re-united” with him and consequently he has inherited the entire property left by Prangobinda.

2. The Subordinate Judge has come to the conclusion that the Defendant No. 1 was not “re-united” with Prangobinda but as he was joint with Prangobinda at the time of the latter's death he was entitled to get the whole of Prangobinda's property. He has accordingly dismissed the suit. Hence this appeal by the Plaintiff.

3. The finding of the trial Judge that the Defendant No. 1 was not “re-united” with Prangobinda as contemplated by Hindu law was not challenged by the learned Advocate appearing on behalf of the Defendant No. 1. His contention, however, is that though not “re-united” within the meaning of the Hindu law, the Defendant No. 1 is still entitled to inherit the whole of Prangobinda's property by reason of his having been joint with him at the time of his death. He relies on the decision of this Court in Akshay Chandra Bhattacharjya v. Haridas Goswami(1).

4. Before coming to the decided cases we would prefer to look to the texts of the Hindu law itself.

5. There is a sharp difference between the Mitakshara and the Dayabhaga on the fundamental principles of the Law of Succession and Inheritance.

6. Both the authorities used the word —daya—to denote the property devolving upon a person by succession.

7. The Mitakshara explains the term as signifying—“the wealth which becomes the property of another solely by reason of his kinship to the owner” ‘’

8. Dayabhaga, on the other hand, defines the term as signifying the wealth in which property, dependent on kinship to the former owner, arises only upon the cessation of his ownership thereof—“”

9. There is a fundamental divergence between the Mitakshara and the Dayabhaga schools relating to the devolution of property on the death of a member of a joint family. According to the Mitakshara law, to quote the language of Mr. Mayne.

“there is no such thing as succession properly so called in an undivided family……The whole body of such a family, consisting of males and females, constitute a sort of corporation, some of the members of which are coparceners, that is, persons who on partition would be entitled to demand a share, while others are only entitled to maintenance. Each person is simply entitled to reside and be maintained, in the family house; when he dies his claims cease, and as others are born their claims arise. But the claims of each spring from the mere fact of their entrance into the family, not from their taking the place of any particular individual. Deaths may enlarge the beneficial interest of the survivors, by diminishing the number who have a claim upon the common find, just as births may diminish their interests by increasing the number of claimants. The joint family property continues to devolve upon the members of the family for the time being by survivorship and not by succession. For, according to the principles of Hindu law, there is coparcener ship between the different members of a united family and survivorship following upon it. There is community of interest and unity of possession between all the members and upon the death of any one of them, the others take by survivorship that in which they had during the deceased's life time a common interest and a common possession.”

10. According to the Dayabhaga, however, the ownership of a person is the same whether he is or is not a member of a joint family. During jointness he only holds the property in common tenancy with the other co-owners and on his death his heirs will come in by succession and inheritance.

11. The word for partition in both the schools is ‘’—Vibhaga. The Dayabhaga explains the term by saying: “Partition consists in manifesting (or in particularising) by the casting of lots or otherwise, a property which had arisen in lands or chattels, but which extended only to a portion of them, and which was previously unascertained, being unfit for exclusive appropriation, because no evidence of any ground of discrimination existed. Or partition is special ascertainment of property, or making of it known.”—

12. The Mitakshara on the other hand says:——

“Partition is the adjustment of diverse rights regarding the whole, by distributing them or particular portions of the aggregate.”

13. In either school what a person gets as his allotment on partition becomes his property and subject to the rights of the sons and grandsons in the Mitakshara school, shall devolve on his heirs by the law of succession.

14. The two schools again differ on the principles of succession.

15. According to the Dayabhaga school a person succeeds to the estate of another on the strength of his conferring some benefit on that other. The right of succession to property is founded on competence for offering oblations at obsequies; and the order of succession is regulated by the degree in which benefits are conferred. According to Dayabhaga—“”—

—Two motives are indeed declared for the acquisition of wealth: One, temporal enjoyment; the other, the spiritual benefit () of gifts and so forth. Now, since the acquirer is dead, and cannot have temporal enjoyment, it is right that the wealth should be applied to his spiritual benefit.” (Chapter XI, sec. 6, Vers. 13).

16. In determining the preferential heir again, the principle applied is one of benefits of the last owner: “”—

“Such order of succession must be followed as will render the wealth of the deceased most serviceable to him” (Chap. XI, sec. 6, Vers. 28). According to Dayabhaga “”

“And it is reasonable that the wealth, which a man has acquired, should be made beneficial to him by appropriating it according to the degree in which services are rendered to him.” (Chap. XI, sec. 6, Vers. 31). Jimutbahana relieson the text of Manu——

—to the nearest sapinda the inheritance next belongs” (Chap. IX, Vers. 187);—and says “nor should it be pretended that the text of Manu is intended to indicate nearness of kin according to the order of birth, and not according to the presentation of offerings; for the order of birth is not suggested by the text”: —

(Chap. XI, sec. 6, Vers. 18).

17. According to the Mitakshara on the other hand, propinquity (nearness of blood) is the regulating principle in determining the order of succession among heirs. This rule of propinquity is founded by Vijneshwara on the same text of Manu, viz.: “”

(Chap. IX, sec. 187). He only takes the word “panda” to mean “corporal particles.” The Mitakshara texts, however, fail to help the ascertainment of the degree of nearness in blood in many cases. In such cases the Vira-mitrodaya solves the difficulty by referring to the doctrine of spiritual benefit. This view of the Viramitro-daya has been accepted by the Judicial Committee: Bhyah Ram Singh v. Bhayah Ugur Singh(2) and Budhai Singh v. Laltu Singh(3). Their Lordships say

“When a question of preference arises as preference is founded on superior efficacy of oblations, that principle must be applied to the solution of the difficulty. It obtains properly when a succession opens to a deceased, when the question mooted is a real one (at least in the contemplation of pious Hindus), viz. who best can confer on the deceased, and his ancestors not fully benefited, the benefits which the grades of oblations offer in differing degrees.”

18. In the last-named case the Judicial Committee observed:

“It is absolutely clear that under the Mitakshara, whilst the right of inheritance arises from sapinda relationship or community of blood, in judging of the nearness of blood relationship or propinquity among the Gotrajas, the test to be applied to discover the preferential heir is the capacity to offer oblations.”

19. The Hindu law contemplates cases of “re-union” after partition and there are express Smriti texts to define what is “re-union” and to determine what will be the rule of succession in such a case.

20. The relevant Smriti texts are these:—

(Manu IX, 212.)

“His uterine brothers, having assembled together, shall equally divide it, and those brothers who were reunited (with him) and the uterine sisters. (Manu, Chapter IX, Ver. 212, as translated by Max Muller).

“A re-united (brother) shall keep the share of his re-united (co-heir) who is deceased or shall deliver it to (a son subsequently) born.

[Yajnavalkya, Chap. II, Verse 139, as translated by Colebrooke]

(Yag. Chap. II, Verse 140).

“A half-brother, being again associated, may take the succession, not a half-brother though not re-united: but one united (by blood though not by co-parcenary) may obtain the property; and not (exclusively) the son of a different mother” (Yag. Chap. II, Verse 140).

“He, who being once separated, dwells again through affection with his father, brother, or paternal uncle, is termed re-united. (Vrihaspati, Chap. XXV, Verse 72).

21. The Vrihaspati text defines “re-united” () Dayakrama sam graha in its Chapter V explains what this re-union () is. After citing this text of Vrihaspati, it says:—“—

“Therefore where a person has been once disunited from his father and the rest;—afterwards the former partition is annulled by mutual consent of the separated parties, and in consequence of an agreement being concluded to the following effect, “the wealth which is thine, is mine”—“that which is mine is thine,” they resolve on the dwelling in the same abode—This is considered re-union.” (As translated by Wynch, Chap. V, Vers. 3). The Vyavahara Mayukha also understands re-union as the result of agreement in fact. “When two settle thus: the present, or future wealth of us two, is common property, until we make a partition a second time; when there exists such a sign, either by an understanding or expressed wish, it is a union.”

(Sec. IX, Vers. 1).

Sarasvati Vilasa says: “The rule of re-union means the undergoing of the risk of the burden of contingent loss when, at a time subsequent to partition, co-parceners throw again together their separate wealth, and start in life together as re-united persons, with the special compact that they should share in the profits and losses which may happen to accrue.” “The order of succession in respect of the re-united is based on reason because, from the reasoning employed, the re united are to be preferred to the wife and the daughter and also the non-re united father and the rest included in the order.”

(Verses 712 and 173).

Smritichandrika says: —“A re-union is completed not by the union of the co-parceners alone, but by the union of their wealth. It must therefore be understood that the term ‘re-union’ does not apply, until the effects which had been divided, are again mixed together as before, so as to destroy altogether every mark indicating division. A mere joint residence of co-parceners does not amount to a re-union.”

“Re-union” is thus understood in the Hindu law as the result of an agreement between the persons reunited. See in this connection Bala Bux v. Rakhmabai(4), Jathi v. Ban-warilal(5) and Gobindoss v. Official Assignee of Madras(6). Its effect on the present ownership of the parties, on a possible second partition and on the rule of succession in case one dies while still re-united, is determined by special texts. These special rules are only the exceptions to the general principles adopted by both the schools and are intended specifically for the cases of re-union as understood in the Hindu law. The Dayabhaga itself says: “The texts, ‘a re-united (brother) shall keep the share of his re-united co-heir,’ is intended to provide a special rule governed by the circumstance of re-union after separation, and applicable to the case where a number of claimants in an equal degree of affixity occurs.” (Chap. XI, Sec. V, Verse 38)—

22. Beyond these special texts governing the cases of “re-union” there is no text in the Dayabhaga laying down any special rule which will entitle a brother or uncle, who, after separation, lives jointly without being “re-united” in the above sense of the Hindu law, to any preferential claim at succession.

23. It is contended that such a preferential claim is deducible from the principles of succession propounded in the Mitakshara.

24. In the case of The Collector of Madura v. Moottoo Ramalinga Sathipathy(7), the Judicial Committee said:—

“The remoter sources of the Hindoo law are common to all the different schools. The process by which those schools have been developed seems to have been of this kind. Works universally or very generally received became the subject of subsequent commentaries: The commentator put his own gloss on the ancient text; and his authority having been received in one and rejected in another part of India, schools with conflicting doctrines arose. Thus the Mitakshara which is universally accepted by all the schools, except that of Bengal, as of the highest authority, and which in Bengal is received also as the high authority, yielding only to the Dayabhaga in those points where they differ was a commentary on the Institutes of Yajnavalka; and the Dayabhaga, which wherever it differs from the Mitakshara, prevails in Bengal, and is the foundation of the principal divergences between that and the other schools equally admits and relies on the authority of Yajnavalka,”

25. The verses of the Mitakshara on which reliance is placed by the Appellant are the following:—

“Here the term heritage (daya signifies that wealth which becomes the property of another, solely by reason of (his) relation to the owner.

“It is of two sorts: unobstructed (Apratibandha) or liable to obstruction (Sapratibandha). Now the wealth of the father and of the paternal grand-father, becomes the property of his sons and of his grand-sons, in right of their being his sons and grandsons respectively and that is an inheritance not liable to obstruction. But property devolves on paternal uncles, brothers and the rest, upon the death of the owner, and in default of male issue and thus the existence of a son and the existence of the owner are impediments to the succession; and, on their ceasing, the property devolves (on the successor) in right of his being uncle or brother. This is inheritance subject to obstruction. The same should be inferred in respect of their sons and the rest.” (Mit. Chap. I, sec. 1, Verses 2 and 3).

26. It is difficult to see how this text helps the proposition enunciated by the Appellant. The property after partition becomes the property of the nephew and if any uncle claims it on the demise of the nephew, it will be a case of “obstructed heritage”—to him. The very basis for the application of the doctrine of survivorship is removed by the partition; and, in the absence of any special incident introduced by any re-union, the uncle must claim only as an heir to his nephew.

27. The position, therefore, is that the Smritis, the Dayabhaga or the Mitakshara do not anywhere lay down that a brother or uncle who after separation becomes joint but not re-united is entitled to any preference.

28. In the case of Akshay Chandra Bhattacharyya v. Hari Das Goswami, Mitra, J., sitting singly observed:—

“The reason for inheritance by a remitted coparcener is not spiritual benefit, but a quasi-contractual relation and affection for each other. Spiritual benefit has no place. Affection is an important element (Vrihaspati XXV, 72-77). The agreement, the wealth which is thine, is mine, that which is mine, is thine is also another element (Dayakarma Saograha, Chapter V section 1, paras. 2 and 3). The criterion is not expressly spiritual benefit.”

“We must next see what in such a case as the present, the older authorities have laid down and whether they have been expressly dissented from by Jimutavahana. An express dissent by the authorities of the Bengal School of law will preclude our adopting the rules laid down by the older and the more orthodox authorities. The sages, whose texts have been interpreted in the Mitakshara, were undoubtedly of opinion that a co parcener, who is joint, is entitled to preference under the law of survivorship. If, as has been found in this case, Lal Mohan was joint with Nanda Gopal, he would succeed according to the Mitakshara, which, in my opinion, should be the guiding principle in the absence of any express texts or commentaries or the Dayabhaga School of law. I would, in all cases of absence of texts or precedents under the Dayabhaga law, have recourse to the theory of propinquity and natural love and affection, as adopted by Vijnane-swara and the commentators of the more ancient and orthodox schools of Hindu law, They are highly respected by lawyers of the Bengal school and I would make the law of Bengal correspond with the law as administered in the rest of India.”

29. We have already referred to the text of Dayakarama Sangraha relied on in this decision by Mitter, J. In our judgment that text does not support the rule of law sought to be enunciated in the above case.

30. Verse 72 of Chapter XXV of Vrihaspati again only defines the “re-united”(. The other verses of Vrihaspati referred to in the judgment of Mitter, J., are the following:—

“When brothers formerly divided are again living together through affection and arrange a second division, the right of primogeniture does not accrue in that case.”

(Chap. XXV, 73).

“When any one (brother) should die or anyhow renounce worldly interests, his share is not lost; it is allotted to his uterine brother.”

(Chap. XXV, 74).

“If there be a sister, she is entitled to a share of his property. This is the law regarding (the wealth of) one destitute of issue, and who has no wife or father.”

(Chap. XXV, 75).

“When two (co-parceners) have again established together, they shall mutually inherit their property.”

(Chap. XXV, 76).

“If among re-united co-parceners any one should acquire property through learning, valour, or other (independent effort of his own), a double share must be given to him; the rest shall take equal shares.”

(Chap. XXV, 77).

31. These are all exceptions to meet the special cases of re-union. “Re-union” is not the result of any quasi-contract but, as has been pointed out above, is the product of real contract in fact,—is the product of an agreement, express, or implied, from conduct. A quasi-contractual relation is one which is not in truth contractual, but which the law treats as if it were so. It is contractual in law, but not in fact and being the subject of contract covers relations which do not in reality fall within it. A quasi-contract may be said to be a contract implied in law as distinguished from a contract implied in fact. The latter is a true contract, though its existence is only inferred from the conduct of the parties, instead of being expressed. (See Salmond—Jurisprudence, Ninth Ed., p. 642).

32. The general rule is that all brothers or paternal uncles would equally divide the heritage. “Re-union” is an exception to this general rule and is the basis of preference. Affection may lead to “re-union.” Where there is no re-union, affection by itself cannot be invoked as an independent principle forming the basis of preference.

33. No doubt “affection” plays an important part in the utilitarian doctrine of succession. But as we have seen above, the basis of succession, as adopted by the Hindu law-givers, did not turn upon this factor at all. No doubt the theory of nearness of blood might imply the theory of “affection.” But that cannot be said to be the principle of succession adopted by the Mitakshara.

34. We enquired of the learned Advocate for the Defendant No. 1 as to whether there is any authority in support of the observation of Mitter, J., that “the sages whose texts have been interpreted in the Mitakshara were undoubtedly of opinion that a co-parcener who is joint is entitled to preference under the Law of Survivorship.” The learned Advocate cited verses 2 and 3 of sec. 1, Chapter I of the Mitakshara in support of the above observation of Mitter, J. As we have observed above, these verses simply lay down that on the failure of male issue, brothers or uncles inherit by reason of their relationship with the deceased. The principle of survivorship is the result of the principle of ownership by birth adopted by the Mitakshara. As between the separated co-parceners the very basis of the principle will be wanting as the result of the partition. Thereafter even re-union will not restore the pre-partition legal position and that is why special texts became necessary to define the position consequent on re-union. It may further be noticed here that even in the case of re-union a re-united brother, nephew or uncle takes not by survivorship but by the special rule of succession expressly laid down for the case. Vijna-neshwara in Chap. II, Sec. IX, Verse 13 o£ the Mitakshara says:—

“Among re-united brothers, if the eldest, the youngest or the middle-most, at the delivery of shares, that is, at the time of making a partition, lose or for feit his share by his entrance into an other order or by the guilt of sacrilege or by any other disqualification; or if he be dead, his allotment does not lapse.

(Mit. Chap. II, S. 9, Vers. 13).

Vijnaneshwara draws this inference from the texts of Manu in Chapter IX, Verses 211 and 212: “

“Should the eldest or youngest of several brothers be deprived of his allotment after distribution or should any one of them die, his share shall not lapse; but his uterine brothers and sisters, and such brothers as were reunited after separation, shall assemble together and divide the share equally.”

35. Similarly Smritichandrika says:—

“If, before partition in a family prior to re-union one should die or enter into a religious order without having male issue, his share becomes extinct because no partition has taken place in the family and there has been consequently no ascertainment of the extent of share of each parcener. Therefore all the other undivided parceners take the whole heritage of the deceased. But, in the instance of a parcener dying after re-union, no such ascertainment of the extent of his share is wanting, the extent having already been ascertained in the original partition. A re-union cannot have the effect of destroying the extent of share so ascertained. It simply destroys the exclusive right which he had possessed prior to the re-union to the property that had fallen to his share. Therefore the whole estate is not, on his death, taken by all the other re-united parceners….”(Chap. XII, para. 9). Its succession is governed by the special texts.

36. We, therefore, see no reason why all the uncles under Dayabhaga law should not inherit equally when the deceased nephew was not “re-united” with any of them. A Division Bench, of this Court has also taken this view [Jyotish Chandra Chaudhury v. Prafulla Chandra Sanyal(8)].

37. The trial Julge has found that Defendant No. 1 was joint with Prangobinda, but not re-united. After the death of Bepin Behari, Defendant No. 1 took charge of Prangobinda and of the properties which were given to him by Bepin Behari. The tenants who used to cultivate the lands of Prangobinda and Defendant No. 1 used to deliver the bhag paddy to the Defendant No. 1 The record-of-rights prepared under Chapter X of the Bengal Tenancy Act records the separate possession of Prangobinda in his properties. The explanation of the Defendant No. 1 that the record was wrongly prepared “as he could not be present on account of his illness before the settlement authorities cannot be accepted. Prangobinda died shortly after he attained majority. Consequently it cannot even be said that Defendant No. 1 was joint in property with Prangobinda during his life-time.

38. The result, therefore, is that this appeal is allowed. The judgment and the decree of the Subordinate Judge dismissing the Appellant's suit for petition are set aside. Plaintiff's title to 4 as share of the disputed properties is declared. The case is sent back to the trial Judge for determining the issue as to whether the Plaintiff is entitled to get any decree for accounts. The learned Judge is further directed to draw up a preliminary decree for partition in accordance with our finding that the Plaintiff has got ¼th share in the properties in suit.

39. In the facts and circumstances of this case we direct the parties to bear their own costs in the trial Court. So far as the costs of this Court are concerned the Appellant will get the costs incurred by him for the preparation of the paper book only from the Defendant No. 1.

P.C