Sir Madhavan Nair:-

These are consolidated appeals by the plaintiffs, defendants 2 and 5 from a judgment and decree of the High Court of Patna dated 8-5-1941, which varied a decree and judgment of the third Subordinate Judge of Patna dated 10-4-1937, decreeing the partition of the joint family property.

[2] The appeals arise out of a suit for partition instituted by plaintiff 1 (hereinafter called the plaintiff), and his son, plaintiff 2, against defendant 1 (hereinafter called the defendant) and defendants 2 to 4, the other members of a joint Hindu family governed by the Mitakshara law. Defendant 3 was a minor at the time of the suit but became a major subsequently. Defendant 5 was born more than 3 years after the suit began, and was made a party to the suit.

[3] The following question's raised by the plaintiffs, defendants 2 and 5, respectively, in their appeals, arise for determination before the Board: (1) Whether items 27, 28, 59, valuable articles of jewellery, mentioned in the amended Sch. 2 of the plaint have been established to belong to the joint family. (2) Whether the Courts below should have held that defendants was entitled to arrears of maintenance. (3) Whether it was open to defendant 5, born more than 3 years after the partition suit began, but before the actual division of the estate, to claim a separate share in the joint family estate as an "after-bornson" i.e., in other words, whether the Courts below should have held that the plaintiff and defendants 1 to 3 were each entitled to 1-6 share in the property. Other questions raised in their appeals were abandoned by the appellants in the course of the hearing of the appeals.

[4] To appreciate the arguments, a few facts not disputed may be mentioned. The following genealogical table shows the relationship of the parties :

[5] The defendant was the karta of joint Hindu family composed of himself and the rest of the parties to the suit. The plaintiff and defendant 2 are his sons by his first wife deceased. Plaintiff 2 is the son of plaintiff 1. Previous to this litigation there had been a family dispute between the defendant and his father Raja Ram, on one side, and a collateral, Saligram, on the other. This was settled by a compromise in 1912, on the terms, inter alia, that each party should retain possession of the jewellery and ornaments which were in its exclusive possession at the time of the compromise, and that the remainder should be divided later. That division took place in 1918, and the present plaintiff and the defendant came into possession of the items allotted to their share.

[6] In 1918, the defendant married his second wife, defendant 4. The plaintiff was married in 1925. Soon after his marriage, ill feeling arose between the plaintiff and his father. In 1929, the defendant agreed to make a separate allowance to the plaintiff and his brother, defendant 2, and continued making the allowance till July 1931, when he ceased payment to both the plaintiff and defendant 2. The plaintiff then made a demand for partition which was refused; and then the suit out of which these appeals arise was instituted by the plaintiffs for partition of the joint family properties. The suit was instituted on 15-7-1932.

[7] For the purpose of these appeals, it is not necessary to refer to the various contentions of the parties. The findings of the Courts below to which their Lordships will now call attention show with sufficient clearness the nature of those contentions. Their Lordships will refer only to those findings which have been the subject of controversy before the Board, omitting the rest to which no exception has been taken before them.

[8] Along with the plaint, 12 classified schedules of movable properties were filed, of which sch. 1 contained, amongst other items, items 1 and 5, valuable "puja" articles. Item 1 is a dakshinavarat sankh, and item 5 is an "eakmukhi rudraksha." The Subordinate Judge found that these articles were in the possession of the defendant. As