The central legal point established in the judgment is the recognition of the sons' right to enforce partition against the father's will in immoveable property acquired by the paternal grandfather, as per the Smritis of Yajnavalkya and Manu, and the correct interpretation of Section V, chapter I, Mitakshara, which establishes the son's entitlement to demand partition from his father of ancestral property.

Muttusami Ayyar, J.

1. Appellants are brothers and respondents are the sons of the second appellant Natesayyan. Respondents sued appellants for partition, and the question raised for decision in this appeal is whether the suit is maintainable under the Mitakshara law.

2. The property, of which partition is decreed by the Subordinate Judge, is admittedly ancestral, and it is conceded that if the second appellant had no brothers the suit would lie. The contention on appellants behalf is that when the father has brothers, and when he is alive, the sons cannot enforce partition against his will according to the Mitakshara. We are of opinion that both in principle and on authority the contention must be disallowed. The sons right to demand partition from his father arises from the coparcenary right of the former by birth, and it is confined to ancestral property, because the son and the father confer equal spiritual benefit upon the grandfather and ancestors and they have equal right in such property, whilst in paternal property the father has a dominant right as its acquirer. The basis on which the sons right of partition rests is the same whether the father has brothers or not and there is therefore no legal foundation for the contention.

3. It is further at variance with placita 8 and 11, Mitakshara, Chapter I, Section V.

4. Placitum 8 shows that the partition takes place by the will of the son, though the mother is capable of heaving more sons and the father does not desire partition.

5. Placitum 11 refers to Manu, IX, 209, and draws an inference from it to. the effect that the father, however reluctant, must divide with his sons, at their pleasure, effects acquired by the paternal grandfather.

6. Ptaciturn 3 refers to the Smriti of Yajnavalkya to the effect that the ownership of father and son is the same in land which was acquired by the grandfather. Placitum 5 contains Vigyaneswaras comment upon it. "In such property which was acquired by the paternal grandfather through the acceptance of gifts, by conquest or other means, the ownership of father and son is notorious and therefore partition does take place. For, or because, the right is equal or alike, therefore partition is not restricted to be made by the fathers choice nor has he a double share."

7. Thus, the Smritis of Yajnavalkya and Manu, as commented on in the Mitakshara, recognise the sons right to enforce partition against the fathers will of immoveable property acquired by the paternal grandfather on the ground that they have equal ownership in the same.

8. Appellants pleader relies in support of his contention on placita 1, 2, and 6.

9. Placitum 1 refers to the equal division of paternal estate and states that a special rule is propounded by Yajnavalkya concerning the division of grandfathers effects among grandsons. That special rule is among grandsons by different fathers, the allotment of shares is according to the fathers. Placitum 2 comments upon that rule and explains and illustrates it. Placitum 6 repeats the rule. It is contended that since the grandsons share has to be carved out of the fathers allotment, there can be no partition at the instance of the grandson when the father is alive, has brothers and does not desire partition, and consequently, the sons right of partition is taken away in the case suggested. Reliance is placed in support of this view on a passage in Maynes treatise on Hindu Law, Section 432, and on West and Buhler, page 295. This suggestion rests on a misconception of the reason of the special rule, Placitum 2 commences with the words, " although grandsons have by birth a right in the grandfathers estate equally with the sons, "and goes on to say" still the distribution of the grandfathers property must be adjusted through their fathers and not with reference to themselves."

10. Thus the very text which prescribes the special rule postulates the existence of the equal right of father and son in the grandfathers property, It is therefore