A son born after partition is entitled to a share from the properties allotted to the sons, even if the father had not reserved a share for himself at the partition.

Krishnaswami Ayyangar, J.

1. This second appeal arises out of a suit instituted by the two sons of one Alagu Gounder by his second wife against his two sons by his first wife. Alagu Gounder had married two wives, Kasi Ammal and Onnammal. On 28th November 1934 he effected a partition of the family properties but reserved no share for himself. At this date he had one son Alagu Gounden by his senior wife, Kasi Ammal, and two sons Perumal and Ramaswami by his junior wife, Onnammal. They were all minors. The scheme of the partition was to allot one share to Kasi Ammal and her son defendant 1 and two shares to Onnammal and her two sons, the plaintiffs in the present suit. He retained for himself a few items of properties for his own maintenance but without power of alienation. After his lifetime these properties were to be taken by his three sons in equal shares. The possibility of male children being subsequently born was contemplated and to meet that contingency the following provision was inserted in the deed:

Male children who might hereafter be born out of your (the two wives Kasi Ammal and Onnammal) lions should be provided for out of the shares allotted to the respective families.

2. The word "families" occurring here has reference to the two branches represented by the two wives of Alagu Gounder. The meaning of the clause is that if a son should be born in future to either of his wives that son should get his share out of the properties allotted to his own mother and uterine brother or brothers under the partition deed and not from out of the properties allotted to the other branch. Alagu Gounder died in 1989. The plaintiffs who are the two sons by his junior wife instituted the suit for the recovery of two-thirds share in those properties which had been reserved for the maintenance of the father, under the partition deed. The defendants were (1) Alagu Goundan the first son by the senior wife Kasi Ammal who had been born before the date of the partition, and (2) another son, by the same Kasi Ammal born on 18th November 1935, nearly a year after the partition. The contention of the subsequently born son who is the appellant in the second appeal is that he is entitled to have the partition reopened as no share had been set apart for the father at the partition. He relies upon the principle of Hindu law stated at p. 381 of Mullas Hindu Law to the following effect:

Where the father has not reserved a share for himself at a partition with his sons, a son who is born as well as begotten after the partition is entitled to have the partition reopened and to have a share allotted to him not only in the property as it stood at the time of the original partition, but in the accumulations made with the help of that property.

3. This statement of the law is practically the same as that laid down in Chengaima v. Muniswami (1997) 20 Mad. 75. The correctness of this proposition so far as it goes has not been challenged before us and indeed, it appears to be amply supported by authority. One of the contentions advanced in the Courts below was that on a true construction of the deed it must be held that a share had really been allotted to the father and that the rule of law relied on cannot therefore be invoked. The lower appellate Court has not accepted this contention and I am of opinion that taking the document as a whole it cannot be said that what was retained by the father was anything but a provision for his maintenance. It was certainly not a share in the property because this provision is not only limited to the duration of his life but is immediately followed by the express statement that on his death his sons should divide the properties equally among themselves.

4. Here then we have a case where a partition was made by the father by dividing the family property amongst his sons, but reserving no share for himself. The appellant who was begotten and born after the partition is obviously within the rule stated above, and is pri