The main legal point established in the judgment is that under Mitakshara, the son and grandson have an unobstructed right by birth to the separate property of the grandfather, and partition does not annul the filial relation or the right of succession incidental to that relation.

Ramaswami, J.

1. This appeal raises an important question in the Hindu law of inheritance. The plaintiffs brought the suit alleging that they were entitled to one tenth share in the properties of their deceased grandfather Kunj Bihari Singh and asking for a partition thereof. The relationship of the parties will appear from the following pedigree :

KUNJ BIHARI SINGH

______|_____________

| |

Thakur bairab Prasad Suresh Prasad Singh

(Deft. 1) (Deft. 5)

| |

| Sachitanand Singh

| (Deft. 6)

|_____________

________________|_____________

| | | | |

Birendra Narendra Dhirendra Hirendra

Prasad Pratap Pratap Pratap

Singh Singh Singh Singh

(Plff. 1) (Deft. 2) (Deft. 3) (Deft. 4)

|___________

|

Arbind Singh alias

Bachha Babu,

minor (Plff. 2)

It is the agreed case that in 1940 Kunj Bihari Singh partitioned his properties with his sons, Bhairab Prasad and Suresh Prasad Singh; that in 1942 the plaintiffs became separate from defendants 1 to 4, who continued to remain joint. Kunj Bihari died in March 1944. The plaintiffs claimed that they were entitled to one-tenth share of his inheritance Defendant 1, Phekur Bhairab Prasad, resisted the claim on the ground that only he and defendant 5 were the heirs of Kunj Bihari. It was alleged that the plaintiffs could not claim any share in the inheritance since they were no longer coparceners having separated from defendants 1 to 4. On these rival contentions the Subordinate Judge granted a preliminary decree to the plaintiff for partition of one-tenth share of the property of Kunj Bihari Singh.

2 Against this decree defendants 1 to 4 have preferred this appeal.

3. The important question to be determined is whether the plaintiffs are entitled to a share in the inheritance left by Kunj Bihari Singh in spite of the fact that the plaintiffs have already separated from their coparceners.

4. The cardinal principle of Mitakshara is that property in the fathers or paternal grandfathers estate is by birth (Janmasvatvavada). In the Mitakshara

I. 1. 2., Vijnanesvara declares that "the term heritage (daya) signifies the wealth which becomes the property of another solely by reason of relation to the owner."

(LOCAL LANGUAGE)(Mitakshara I.1.2.)

5. This text is the key to the theory of inheritance propounded by Vijnanesvara. In I, 1, 3 he proceeds to explain;

(LOCCAL LANGUAGE)

"The wealth of the father, or of the paternal grandfather, becomes the property of his sons or of his grandsons, in right of their being his sons or grandsons, and that is an inheritance not liable to obstruction. But property devolves on parents (or uncles), brothers and the rest, upon the demise of the owner, if there be no male issue : and thus the actual existence of a son and the survival of the owner are impediments to the succession; and, on their ceasing, the property devolves on the successor in right of his being uncle or brother. This is an inheritance subject to obstruction. The same hold-good in respect of their sons and other (descendants)."

6. In other words, the kinsmen are entitled to succeed to the deceased owners property solely by reason of their consanguinity with the latter. This is confirmed by Visveswara Bhatta in Sobodhini, his commentary on the Mitakshara:

(LOCAL LANGUAGE)

"Wealth which becomes the property of another (as a son or other person bearing relation) in right of the relation of offspring and parent and the like, which he bears to his father or other relative who is owner of that wealth, is signified by the term heritage. A son and a grandson have property in the wealth of a father and of a paternal grandfather, without supposition of any other cause but th