( 1 ) THIS Letters Patent Appeal by leave arises out of the judgment of the learned Single Judge dismissing the appeal preferred by the plaintiff against the judgment and decree of the District Judge reversing the judgment and preliminary decree passed for partition by the Civil Judge (Junior Division) Kutiyana. The short question that arises for determination in this appeal is whether the appellant (plaintiff) is entitled to bring an action for partition without the assent of his father under the Mitakshara law applicable to this State when the coparcenary consists of a paternal uncle and others.

( 2 ) THE facts necessary for determination of the question involved are the following. The appellant his father and his uncle constitute a Hindu undivided joint family. The plaintiff filed the partition action averring that he is a member of the coparcenary and that he is entitled to a share in the coparcenary properties. According to him the properties are joint family properties and as such he is entitled to ask for partition of the properties by metes and bounds.

( 3 ) THE action was resisted by the respondents i. e. his father and uncle and another on the ground that the appellants father had separated from the rest of the family during his fathers time and the action as brought by the appellant is not maintainable.

( 4 ) THE main issue before the trial Court was whether the plaintiff was entitled to partition of the suit properties. There was also an issue whether the first defendant that is the father of the plaintiff was the exclusive owner of a Survey Number referred to in paragraph 7 of the written statement.

( 5 ) THE trial Court was of the view that there was no partition between the first defendant and his father and that the plaintiff was therefore entitled to 1/6th share in the joint family properties and on that basis it passed the preliminary decree. That preliminary decree was assailed in the Court of the District Judge by the plaintiffs father. The appellate Court held that the evidence on record did not justify an infer- ence that the first defendant had separated himself from his father about forty years prior to the suit as alleged by the plaintiff. In that view following the decision of the Full Bench of the Bombay High Court in APAJI NARHAR KULKARNI V. RAMCHANDRA RAVJI KULKARNI 16 BOM. L. R. 29 allowed the appeal. The plaintiff preferred a Second Appeal against the said judgment and decree and the learned Single Judge agreed with the findings recorded by the first appellate Court and dismissed the appeal and consequently the suit. He however granted leave and that is how the Letters Patent Appeal is before us.

( 6 ) MR. Vyas learned counsel appearing for the appellant strenuously contended that the decision of the Bombay High Court in Apajis case is no longer good law in view of the decision of the Supreme Court in STATE BANK OF INDIA V. GHAMANDI RAM A. I. R. 1969 S. C. 1330 and therefore the plaintiff is entitled to a preliminary decree in his favour for partition of the properties by metes and bounds. The question raised in Apajis case was whether under the Hindu Law applicable to the Presidency of Bombay (the Satara District) a son can in the lifetime of his father sue his father and uncles for a partition of the ancestral family properties and for possession of his share therein the father not assenting thereto Justice Telang delivered a dissenting judgment whereas the other learned Judges Sir Charles Sargent Kt. Chief Justice Mr. Justice Bayley and Mr. Justice Candy held that under the Hindu Law applicable to the Presidency of Bombay which then comprised of this State also a son cannot in the lifetime of his father sue his father and uncles for a partition of the ancestral immovable family property and for possession of his share without the father assenting thereto. Mr. Vyas invited our attention to certain passages in the judgment of Justice Telang to contend that the view of Justice Te