Moro Vishvanath v. Ganesh Vithal (1873) 57 Bom. H.C. Reports 444

Case Summary

Full Case Details

This was a regular appeal from the decision of Chintaman S. Chitnis, First Class
Subordinate Judge of Ratnagirh in Suit No. 905 to 1866.

The plaintiffs and defendants are descendants of one Udhav, the acquirer of the
property now in dispute between them. The former are beyond and the latter within, the
fourth degree from Udhav. The plaintiff’s claim for partition was admitted by some of
the defendants and opposed by the rest, principally on three grounds, viz., Ist improper
valuation of the claim, 2ndly, limitation; and 3rdly, an averment that the parties have
been in a state of separation for fifty years.

The Subordinate Judge found for the plaintiff’s on all these points, and accordingly
gave them a decree, which it is unnecessary here to set out in detail.

WEST, J, – The first argument to be considered (one pressed with much learning and ability by
Rav Saheb Vishvanath Narayan Mandlik for the appellants) is that, notwithstanding no partition
may have taken place, yet, after three steps of descent from a common ancestor, the acquirer of
the family property, all claims to a partition, by the descendants of one son upon those of another,
cease. The comment of the Viramitrodaya on the passage of Devala is “A distribution of shares
shall take place down to the fourth (descendant) from the common ancestor”. The special
Sapinda, relationship ends with the fourth descendant (inclusive) according to all the principal
authorities, and as a great-great-grandson could not inherit, except as a Gotrajarelation after the
widow and many other interposed claimants, it is said that the analogy of the law of inheritance
prevents a lineal descendant, beyond the great grandson, from claiming partition at the hands of
those who are legally in possession, as descendants from the original sole owner of the family
property or any part of it. The enigmatic language of the texts no doubt lends some support to this
contention but we think that it misses the true purpose of the rule. The Hindu law does not
contemplate a partition as absolutely necessary at any stage of the descent from a common
ancestor, yet the result of the construction pressed on us would be to force the great-grandson, in
every case, to divide from his co-parceners, unless he desired his own offspring to be left
destitute. Where two greatgrandsons 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-parcencer 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. Jagannatha in
Colebrooke’s Digest [(B.V.T. 396, Commentary)] has discussed an argument on a case almost identical with the one before us. The only difference seems to be that it supposes the son of the
original owner to have been separated from his father, and the claim to be set up by his great
grandson to a share in property left undivided in the first partition “But as for the opinion”, he
says, “that (the right to a) partition extends only to the brother, his son, and the son of that son,
even when co-heirs die successively, and that no (obligation to) partition can exist beyond those
with the great-grandson of the late owner’s son may if not be asked to whom then would the
property belong?” Then meeting the argument from the “literal sense of the precept” already
referred to, that the whole property would belong exclusively to the survivor of the two brothers
and his descendants, he says that mere reasonings on the literal sense of the text are out of place,
“for the several ancestors dying successively, and the property not having been silently neglected
during adverse possession, nothing prevents the transmission of it even to the hundredth decree of
lineal consanguinity”. Each descendant in succession becomes co-owner with his father of the
latter’s share, and there is never such a gap in the series as to prevent the next from fully
representing the preceding one in the succession. It is on the same principle that the seventh in
descent in an emigrant branch, can return and claim a partition of the property. He may be a
Sapinda in the stricter sense of one who was a Sapinda of the ancestor in possession. His greatgrandfather may have inherited, as forth in the line a right which he was then capable of
transmitting to the fourth in descent from himself. Here the right stops as amongst those who
have not emigrated; it stops at the fourth from an owner in possession, through the operation of a
law of prescription. Either there has been a failure of three links of the chain of descent, causing
the succession to fall to collaterals, or there has been a “silent neglect” to assert the existing right
which in the fourth or the seventh generation annuls the title (Cole. Dig., B. V. T. 394, 396 Com).
The passage cited by Dhirajlal from Strange’s Manual, and the case there referred to, involve
the same view of the Hindu law as the one just set forth, and are opposed to the notion that a
division of a Hindu family necessarily occurs in the fourth generation from the common ancestor
independently, or even in spite, of the wishes of the several members.

NANABHAI HARIDAS, J. – One set consisting of three defendants, answered that they were
willing to effect a partition and were unnecessarily sued. They in fact, submitted the plaintiffs’
claim.
The other set, consisting of nine defendants, among other things, answered that the claim was
barred by the law of limitation; that they had been separate from the plaintiffs for upwards of
thirty years; and that this suit was the result of a conspiracy between one of the defendants, who
admitted the plaintiff’s claim, and the palintiffs.
The Subordinate Judge, on remand from the High Court, held, inter alia, that the suit was not
barred, and that the property in dispute was joint ancestral property. He, accordingly, made a
decree for partition thereof on the 4th September 1872, the one now in appeal before us.
Passing over as unimportant the objections, preliminary and otherwise, which were urged, as
to the valuation of the appeal and of certain items of the property comprised in the plaint but
which do not affect the merits of the case it seems to me that the substantial questions raised in
the numerous grounds of objection to the Lower Court’s degree, contained in the memorandum of
appeal, as argued before us resolve themselves into

1st- Whether this claim is barred by the law of limitation?
2nd – Whether the plaintiffs are entitled to demand a partition at all assuming them to be
members of an undivided family?
3rd – Whether they are members of an undivided family? and
4th – What share, if any, are they entitled to?

It seems to me that a good deal of the argument on the questions of bar under the law of
limitation might have been spared. It is admitted that a portion of the property, of which partition
is sought is now in the possession of the plaintiffs, another portion of it in that of the defendants;
so that; if the plaintiffs and defendants are still members of an undivided family, the suit cannot
be held barred under Cl. 13, Sec. 1, Act XIV of 1859, the law of limitation governing this case
Sakho Narayan v. Narayan Bhikaji, [6 Bom. H.C. Rep A.C. J.238]. On the other hand, if they
do not now bear that character, no partition suit can at all lie between them, except under certain
specified circumstances, which are not alleged to exist in this case, and the question of limitation
under the Act, therefore, becomes immaterial.
The next question, however, whether, assuming them to be undivided, the plaintiffs are
entitled to sue at all for partition, according to Hindu law, is one of considerable importance and
difficulty. Learned and ingenious arguments, based upon various original texts, have been
addressed to us by the able pleaders on both sides. The plaintiffs and defendants are admittedly
descendants of one common aneestor, Uddhav. The defendants are all fourth in descent from him.
The plaintiffs, however, are some fifth and others sixth in descent from him; and hence, it is
urged, the latter cannot claim from the former any partition of property descended from that
common ancestor.
It is argued for the appellants that, since the fifth and remoter descendants are by the law of
inheritance, postponed to the fourth and nearer descendants, (between whom and them, moreover,
other relations may intervene) the former are not co-parceners with the latter and cannot,
therefore, demand a partition from them. In support of this contention are cited the passages of
Katyayana and Devala, quoted from the Viramitrodaya in 2 W and B’s Dig. Introduction, III, IV;
Manu [IX 186], with Kulluka’s comments on it; Nanda Pandita’s Comments on Devala;
Apararka on Yagnyavalkya; VyavaharaMadhava ; and Kamalakar. Devala’s passage it is urged,
aplies to divided and re-united as well as to undivided families and not only to the former
according to Nilakantha who regards, by a forced construction the word Avibhahtavibhatanamas
a Karmadharayain the sense of those who having been divided have again become undivided [or
re-united] instead of as a Dvandva in the sense of divided or undivided as one naturally reads it,
all the authorities being opposed Nilakantha on this point. It is further urged that the law of
partition is inseparably connected with, and is indeed a part of the law of inheritance which is
clearly founded on the spiritual benefit which certain persons according to the religious ideas of
the Hindus are supposed to be capable of conferring on the deceased by the gift of the funeral
cake; that this capacity of benefiting the deceased does not extend beyond the fourth in descent
for Manu says, Chap. IX, 186, “but the fifth has no concern with the gift of the funeral cake;” that
this is made clearer by Kulluka in his commentary; and that as the fifth cannot inherit during the
lifetime of the fourth in descent, so neither can he claim any partition from the latter. It is also
urged that, according to Nanda andita; “Up to the fourth alone are the Kulyas called Sapindas”
and that “the great-grandson’s son gets no share,” that according to Apararka, whose authority is
recognized by Colebrooke, Stokes 177. “Up to that (i.e. the fourth) the Kulyas are Sapindas after
which the pinda relationship ceases; and that according to Vyavahar Madhav “after that [i.e. after
the great grandson] there is always a stoppage of the division of the wealth of the great greatgrandfather.”
To this it is replied that the authorities quoted do not support the contention of the appellants;
that the doctrine of ancestral property vesting by birth in one’s son, grandson, and great-grandson,
was overlooked by the other side; that if A died, leaving two or more sons forming an undivided
family, and they died each of them, leaving one or more sons, and the same thing happened
regularly for several generations all the descendants of A, living in a state of union, as in this
case, the authorities quoted did not prevent any such descendants below the fourth demanding a
partition of their joint family property : (See Str. Man S. 347) ;
A
B C D D
E F H

G I

J
that they only went so far as to lay down that, if A die, leaving B, a son E a grandson, G a great grandson, and J, a great-great-grandson, the intermediate persons having all predeceased him, J,
who stands fifth in descent from A cannot demand a partition of A’s property, because J had not
vested in him by birth any interest in such property ; that the same view of the texts cited was
adopted by the learned authors of the Digest (W. and B Bk. II pp, II, IV); that the right to
participate does not necessarily cease at the 4th descent, see Stokes 290 291; that the expression
Aavibhaktavibhaktanam in the text from Devala must be taken to be a Karmadharayaconpound
as Nilkantha takes it, and not a Dvandva for otherwise the word bhuyo (again) which implies a
previous partition, becomes inapplicable to one member of that compound; that Nilakantha’s
authority on this side of India is entitled to more respect than that of Nanda Pandita or of
Apararka ; that if Nilkantha is right in his interpretation of devals, the text which apparently limits
the right of partition to the fourth in descent refers only to cases of reunited co-parceners and not
to undivided ones; that there being no question here of partition among re-united co-parceners the
text from Devala does not apply; that in an undivided family Sapinda relationship extends to the
seventh and in a divided and re-united one cnly to the fourth in descent from the common
ancestor that one of the original plaintiffs who was fourth in descent from Udhav the common
ancestor and died pending the suit is now represented by his two sons, and that the whole of the
property being still the undivided property of the family. Any of the co owners may compel a
partition of it.
This is a mere summary of the arguments addressed to us on this part of the case. Upon a
consideration of the authorities cited, it seems to me that it would be difficult to uphold the
appellants’ 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
A
B
C
D
E F
removed, of property originally descended from him. Take, for instance, the case put [above]: A,
the original owner of the property in dispute, dies, leaving a son B and a grandson C, both
members of an undivided family. B dies, leaving C and D, son and grandson, respectively; and C
dies, leaving a son D and two grandsons by him, E and F. No partition of the family property has
taken place, and D, E, and F, are living in a state of union. Can E and F compel D to make over to
them their share of the ancestral property? According to the law prevailing on this side of India
they can, sons being equally interested with their father in ancestral property.
In the same way, suppose B and C die, leaving A and D members of an undivided family
after which A dies whereupon the whole of his property devolves upon D who thereafter has two
sons E and F. They, or either of them, can likewise sue their father D for partition of the said
property, it being ancestral.
Now, suppose B and C die, leaving A, D, and DI, members of an undivided family, after
which A dies, whereupon the whole of his property devolves upon D and D1 jointly, and that D
thereafter has two sons E and F, leaving whom D dies. A suit against D1 for partitition of the
joint ancestral property of the family would be perfectly open to E and F; or even to G and F, if E
died before the suit. It would be a suit against D1 by a deceased brother’s sons or son and
grandson :Vyavashsrs Mayukha Chap. IV, Sec. IV, 21.
But E and F are both fifth and G sixth in descent from the original owner of the property,
whereas D and D1 are only fourth.
Suppose, however, that A dies after D, leaving a great-grandson D1 and the two sons of D, E,
and F. In this case E and F could not sue D1 for partition of property descending from A, because
it is inherited by D1 alone, since, E and F, being sons of a great-grandson, are excluded by D1,
A’s surviving great-grandson, the right of respresentation extending no further.
Introducing B1, C1, D1, E1, and F1 and B2, C2, E2, E2, and F2, as additional descendants of
A, all forming an undivided family, might render the case a little more complicated and affect the
value of their shares, but could not destroy the right if any, of E and F to share the joint family
property with the other members.
The rule, then, which I deduce from the authorities on this subject is not that a partition
cannot be demanded by one more then four degrees removed from the acquirer of original owner
of the property sought to be divided but that it cannot be demanded by one more than four
degrees removed from the last owner however remote he may be from the original owner thereof.