Straight, J. and Tyrell, J.:— The findings on remand have been returned to us, and we proceed to dispose of the appeal. Objections have been filed by the respondent, under s. 567 of the Procedure Code, and is conceded that the first of these has no force. The second, however, raises a question of Hindu law, for the purpose of determining which it is necessary to recapitulate a few facts, that, we may add, are admitted on both sides. Chatar Singh had three sons by his first wife, Nawal Singh the plaintiff, Bhagwan Singh the guardian of the minor defendant, and Niladhar who, died childless in the lifetimes of his father, Prior to his death, however, partition had take place between Chatar Singh and his three sons, and each of them had entered into separate enjoyment of his divided share of the ancestral estate. Subsequent to such partition, Chatar Singh married a second wife, by whom was born to him the minor defendant. Chatar Singh, after the separation from his three sons, acquired by inheritance from one Ratan Singh the 4 bighas, 6 biswas, 6 biswansis of muafi land part of which is claimed by the plaintiff in the present suit. After the demise of Chatar Singh, the plaintiff asserted a right by inheritanee to his share of this 4 bighas, 6 biswas, 6 biswapsis, and it is on this basis he now comes into Court. At first sight his contention appears to be plausible enough, as, although he would have no right to inherit any portion of the ancestral property allotted to, and taken by his father upon partition, yet he and his brothers would, under ordinary circumstances, be entitled as heirs to participate equally in the self-acquired estate left by the Father. But in the present case a contingency has intruded itself that alters the whole aspect of matters. We refer to the second marriage of Chatar Singh, and the birth of the minor defendant subsequent to his father's Separation from his three half brothers. Now it is obvious that, unless the partition can be re-opened,—which it cannot, “for a son born after partition has no claim of the wealth of his brothers” —or some equivalent for the share he would have been entitled to had he been alive at the time of partition can be found, the minor respondent would be placed at a great disadvantage, for having lost his personal share in the ancestral property by reason of the partition having take it place before his birth, he would still only get a proportionate part of the self-acquired estate of his father. This condition of things, however, is distinctly provided for by the Mitakshara, ch. i, s. vi, v. 122:—“When the sons have been separated, one who is afterwards born of a woman equal in class, shares the distribution,” and distribution is explained as meaning “the allotments of the father and mother after death,” with the reservation that he will only take the mother's portion, should she leave no daughters surviving her. The same principle is enunciated by Manu: “A son born after division Shall alone take the parental wealth,” that is, what appertains to both father and mother. Vrihaspati upon this point also observes: “All the wealth which is acquired by the father himself, who has made a partition with his sons, goes to the son begotten by him after the partition; those born before it are declared to have too right”. We likewise find this subject fully discussed at pp. 92 and 93 of the Vira-Mitrodaya by Gopalchandra Sarkar, where all the authorities or reviewed; and as far as we can see they endorse to the full this principle of Vrihaspati, and the rule of inheritance laid down by the Mitakshara as already quoted. Applying the law thus clearly enunciated to the present case, the minor defendant has a distinct right to the 4 bighas, 6 biswas, 6 biswansis, to the exclusion of the plaintiff, whose suit accordingly fails and must be dismissed the appeal must also be dismissed with costs.
Appeal dismissed.