Sons succeeding to share of father after division.

The appeal has been filed by minor Dalavoi Ranganatha Mudaliar, plaintiff in O.S. No. 31 of 1954 on the file of the Subordinate Judge of Tirunelveli against the Decree and Judgment in so far as they went against him. He had filed the suit for partition and separate possession, as the adopted son of Ranganatha Mudaliar who died on nth January, 1950. He had claimed a half share in the plaint properties comprised in Schedules 1-A to 1-H on the ground that in those divided properties got by Tirumalaippa Mudaliar, the father of Ranganatha Mudaliar, Kumaraswami Mudaliar and Shanmugakumaraswami Mudaliar at a partition with his three sons on 18th June, 1930, succession opened only on the death of his widow, the life-estate holder on 12th May, 1954, when there were only two heirs. Tirumalayappa died on 22nd November, 1930, after executing a will, dated 14th September, 1930, bequeathing his divided and undivided shares of the properties, got at the partition, to his wife Ulagammal Anni, to be enjoyed by her for her lifetime, but Without making any further provision. Ulagammal died on 12th May, 1954. The plaintiff contended that Tirumalaiappa’s one-fourth share (at partition) would be inherited only by his adoptive father Ranganatha Mudaliar, in whose place he stood, and Kumaraswami Mudaliar, the 1st defendant, alone were alive on that date. Alternatively, he also contended that the one-fourth share of Tirumalaiappa Mudaliar in the ancestral family properties, got by him at the 1930 partition, continued to be joint family properties with joint tenancy, and survivorship, and as Ulagammal Anni died only in 1954 and till that date there was no partition of that one-fourth share between the three sons and he and Kumaraswami Mudaliar, were the only two persons then alive and were therefore entitled to that joint estate by survivorship. Regarding the undivided properties comprised in Schedule II he claimed a one-eighth share (½ × ¼), just as he had claimed a half share in the divided properties comprised in Schedules 1-A to 1-H.

The first defendant, Kumaraswami Mudaliar, was a son of Tirumalaiappa Mudaliar, and defendants 2 to 4 were the first defendant’s sons Defendant 5 was the widow of Shanmugakumaraswami Mudaliar, another son of Tirumalaiappa. Defendant 6 was a wife of Ranganatha Mudaliar, the adoptive father of the plaintiff. Defendant 7 was another wife of Ranganatha Mudaliar whose status as wife was disputed by some of the defendants though asserted by the plaintiff. Defendant 8 was the daughter of defendant 7.

The plaintiff by invoking the theory of joint tenancy of survivorship wanted to ignore the severance of the coparcenary effected by the partition of 1930, and also to deny the rights of the widows of Ranganatha Mudaliar to any share under the Hindu Women’s Right to Property Act, 1937. The lower Court, after exhaustively discussing the evidence and the law, held that, as regards the divided properties in Schedules 1-A to 1-H, the plaintiff would be entitled only to a one-sixth share and only to one twenty-fourth share in the undivided Second Schedule properties (¼ X 1/6) It recognised the right of the widow, defendant 6. It directed partition on these lines, and directed all the parties to bear their own costs since the parties could not amicably partition the properties, and the status of defendant 7 was in dispute, and it had been agreed by the parties to be left open for decision in O.S No. 19 of 1950 on its file, which suit is still pending. The plaintiff has felt aggrieved at his not getting a half share in the properties in Schedules 1-A to 1-H, and a 1/8 share in the properties in Schedule II, and has filed the appeal.

The first respondent, Kumaraswami Mudaliar, filed a memorandum of cross-obiections regarding the refusal of his suit costs amounting to Rs. 300. He died pending the appeal, and his legal representatives have been brought on record. Another memorandum of cross-objections has been filed by