The main legal point established in the judgment is that the rule of division by the stock should be applied in cases of partial division to ensure equality of partition, and the shares allotted at the first partition should be taken into account in calculating the shares to be awarded at the second division to avoid unequal and illegal partition.

Muttusami Ayyar, J.

1. In this case the common ancestor of the parties was Bapayya; he had two sons, Venkatesa and Narayana. Venkatesa had as on Rama-krishna and Narayana had 3 sons Dasa, Lakshmana and Ramachandra. Rama-krishna had three sons Rayappa, Madava and the plaintiff Manjanatha; Lakshmana left two sons Venkatesa and Vaikunta; Ramachandra left a son Ganapati; and Dasa left a son Narayana, who is the first defendant in this suit. Thus in 1867 there were four coparceners in Ramakrishnas branch, Ramakrishna and his three sons, and in Narayanas branch there were the representatives of his three sons Dasa, Lakshmana, and Ramachandra. Ramakrishnas first two sons, Rayappa and Madava in the one branch, and the representatives of Lakshmana and Ramachandra in the other branch, brought the partition suit No. 21 of 1867 and separated from the rest of the joint family. The result of that suit and of the trial in the appeal suit 434 of 1871 was that the family property was divided into twelve shares; that out of six shares due to Rama-irishnas branch, in which there were four coparceners including the father, three shares were allotted to Rayappa and Madava; and that out of six shares due to Narayanas branch, four shares were allotted to the representatives of Lakshmana and Ramachandra. The remaining five shares due to the other coparceners in the family were not separately allotted to them, and Ramakrishna and his son the plaintiff, in one branch, and the first defendant, who is the son of Dasa, the son of Narayana, in the other branch, continued to live together subsequently to the suit of 1867 and enjoyed their shares in common as before. Ramakrishna died in 1872. His son, the plaintiff, claimed in this suit three out of five shares) but the first defendant contended that he was entitled only to two shares. The Subordinate Judge awarded, however, to the plaintiff two and a half shares on the ground that, in allotting shares at a second partition, the present state of the family should alone be considered and that the state of the family when the other members separated from it ought not to be taken into account. The question, therefore, arising for decision in this appeal is whether, in cases in which some members of a joint Hindu family separate from it at one time and others on a subsequent occasion, regard should be had to the shares allotted at the first partition in computing the shares to be allotted at the second division. I am of opinion that the Subordinate Judge is in error in holding that each of the branches, as it exists at present, should have an equal share. The rule that, as between different branches, division should he by the stock, and that, as between the sons of the same father, it should be per capita, is laid down with reference to cases in which all the coparceners desire partition at the same time, and it ought not to be applied indiscriminately, as the Subordinate Judge has done, to cases of partial division. The rule is designed to ensure equality of partition in cases of vested interests held in coparcenary, and to carry out in those cases the principle that those who have capacity to confer equal spiritual benefits on the common ancestor ought to take equal shares. In its simplest form, a joint family consists of a father and his sons, and it attains a further development by each son becoming a father, and by each of the male descendants of that son having male issue in his turn. When, therefore, a joint family in an advanced stage of development is broken up by partition, regard is had to the successive vested interests of each branch; and the division by the stock at each stage a new branch intervenes secures equal shares to those who were the sons of the same father and had capacity to confer an equal amount of spiritual benefit upon him. By applying the rule in the mode in which the Subordinate Judge has done in this case, the principle of equality above indicated, from which the rule of di