Judgement

APPEAL from a decree of the High Court of Bombay (Aug. 2, 1876) affirming all the findings upon which a decree of the Sub- ordinate Judge of Belgaum (Jan. 8, 1875) had been based, but varying the same by directing that in lieu of awarding a fixed sum of money, Rs. 71,412, to the Respondent, there should be a decree for partition and account.

The suit was brought by the Respondent for a partition of family property, and to set aside a will whereby his father had substantially disposed of the whole of the undivided ancestral property in favour of the Appellant, his second son, thereby disinheriting his elder son, the Respondent. Both Courts decided that this will was invalid and illegal, and decreed to the Respondent one half of the family property.

The facts of the case are set out in the judgment of their Lordships. The principal questions of law which arose in the suit were three—

1st. Under the law of the Mitakshara can a father make a valid will of ancestral moveable estate wholly in favour of one son ?

2nd. Assuming that in this case he had not the power of doing so, was the Respondent barred by limitation (Act XIV. of 1859, sect. 1, cl. 13) by reason of his having ceased to be joint with his father and brother, and to receive from them, or either of them, any payment on account of his alleged share for more than twelve years before his fathers death ?

3rd. Was the Respondent barred from bringing this suit by reason of the decision of the Supreme Court (Aug. 30, 1861) in a suit brought by him against his father and the Appellant, to obtain partition of the same estate ?

Upon the question of Hindu law firstly above mentioned, the judgment (see Ind. Law Rep. Bomb. Ser. vol. i. p. 565) of the High Court (Melvill and Kembatt, JJ.) was as follows —

" The present suit has arisen in the Southern Maratha country, and there the first place, as an authority, is assigned to the Mitakshara, and a subordinate, though still an important one, to the Mayukha (See Krishnaji v. Pandurung, 12 Bomb. H, C. 65.). In Baboo Beer Pertab Sahee v. Maharaja Bajender Pertab Sahee (12 Moores Ind. Ap. Ca. 1.), the Judicial Committee say, Decided cases, too numerous to be now questioned, have determined that the testamentary power exists (among Hindus), ‘and may be exercised, at least within the limits which the law prescribes to alienation by gift inter vivos. Accordingly, it has been settled that even in those parts of India which are governed by the stricter law of the Mitakshara, a Hindu without male descendants may dispose, by will, of his separate and self-acquired property, whether moveable or immoveable; and that one having male descendants may so dispose of self-acquired property, if moveable, subject, perhaps, to the restriction that he cannot wholly disinherit any one of such descendants. Their Lordships then refer to, bat do not decide, the question whether a father can by will make an unequal distribution amongst his sons of immoveable property, whether acquired or ancestral. That case does

Law. Rep. 7 Ind. App. 181 ( 1879- 1880) Lakshman Dada Naik V. Ramchandra Dada Naik

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not touch the question of ancestral moveable property; nor have we been referred to any case in favour of the fathers right to make an unequal distribution of such property, except one reported, Marshall, 317. In that case a Bench of the Calcutta High Court said —‘By the Mitakshara law, applicable to the case, the son has a vested right of inheritance in the ancestral immoveable property, and as the question was raised before us, we must declare that the ancestral property is only that actually acquired from ancestor?, and not that which has been acquired or recovered, even though it may have been acquired from the income of the ancestral property ; for the income is the property of the tenant for life, to do what he likes with it. On the other hand, the father has it in his power to dispose as he likes of all acquired and all personal pro perty/ No authority i