Judgement

Appeal from a judgment and decree of the High Court (February 2, 1914) varying a decree of Macleod J. (November 13, 1913).

The suit was instituted in the High Court by the appellant praying for partition between himself and the respondent of the joint family ancestral estate. The only question for decision in the appeal was as to the shares to which the appellant and respondent respectively were entitled.

The parties were Gujerathi Hindus, governed by the Mitakshara and the Mayukha. Their grandfather had been in possession of the property. He died in 1893 leaving two sons, Bhugwandas Nagardas and Hurkissondas Nagardas. Hurkissondas died on September 14, 1900, and Bhugwandas on December 17, 1900. The respondent was the posthumous son of Hurkissondas, born on December 18, 1900, and the appellant on February 1, 1901, was adopted as the son of Bhugwandas by the latters widow under the express authority of her deceased husband. The validity of the adoption and the appellants right as a coparcener had been contested, but were finally established upon appeal to the Privy Council (see L. R. 34 Ind. Ap. 107).

In the present suit the respondent contended that the appellant being the adopted and not the natural son of Bhugwandas was only entitled upon partition to a reduced share, which, according to the Bombay authorities, would be one-fourth of the share of the respondent.

The suit was tried by Macleod J. He was of opinion that the Dattaka Chandrika, s. 5, pars. 24 and 25, upon which the respondent relied, did not apply to a case of partition of joint family property under the Mitakshara law, but only to cases of succession by inheritance to the estate of a deceased person. In the view of the learned judge there was on a partition a primary division per stirpes irrespective of the quality or number of the members of each stirps, and it was only when a secondary division per capita took place that an adopted son took a reduced share. A partition was accordingly decreed on the footing that the appellant and respondent took equal shares.

The respondent appealed, the appeal being heard by Sir Basil Scott C.J. and Batchelor J. The learned judges said that the question at issue had been decided upon similar facts by the Calcutta High Court in Raghubanund Doss v. Sadhu Churn Doss (I. L. R. 4 Calc. 425.), that decision being based upon s. 5, pars. 24 and 25, of the Dattaka Chandrika, and that according to the translation adopted in that case and to a translation by Sir Ramkrishna Bhandarkar (Both translations are set out in the judgment of their Lordships.) agreed by the parties in the present case there was no doubt that the above passage in the Dattaka Chandrika assigned to an adopted grandson an inferior share. The view of Macleod J. that the rule as laid down in the Dattaka Chandrika was inconsistent with the Mitakshara had been rejected in the Calcutta case, and they considered was in conflict with the decision in Debi Parshad v. Thakur Dial. (( 1875) I. L. R. 1 Allah. 105.) The learned judges then considered the effect of the Mitakshara, referring to ch. I., ss. 1, 5, 6, 8,10, and more especially s. 11, vv. 1, 22, 23, 24, and 25, and concluded as follows "It appears to us that there is nothing in the chapter of the Mitakshara relating to inheritance not liable to obstruction which is in conflict with the rule evolved by the author of the Dattaka Chandrika, for, as we have pointed out, s. 5 of the Mitakshara in dealing with the allotment of shares among grandsons is in no way concerned with the quality of the individual sharer, while s. 11 affirms most distinctly the inferiority as a sharer of the adopted to the natural-born legitimate son of the owner of the inheritance. But it is argued that the owner of the inheritance in this case is Nagardas and that the discussion of sons in s. 11 does not warrant the application to grandsons of the disabilities of sons. It is, however, to be observed that verse 22 declares that the right