MORO VISHVANATH

V.
GANESH VITHAL
(1873) 57 Bom. H.C. Reports 444

Procedural History

This was a regular appeal from the decision by Chintaman S. Chitnis,

First Class Subordinate Judge of Ratnagirh in Suit No. 905 to 1866.

The Subordinate Judge found for the plaintiffs and accordingly gave
them a decree.

Facts

The plaintiffs and defendants are descendants of one Udhav, the

acquirer of the property now in dispute between them.

The defendants are all four in descent from Udhav.

The Plaintiffs however, are fifth and some others sixth in descent from
him.

The Plaintiffs have claimed for partition and it is opposed by majority of

defendants and admitted by a few.

Uddhav who was the common ancestor died pending the suit.

The plaintiffs claim for partition was admitted by some of the

defendants and opposed by the rest, principally on three grounds, viz.,
Ist improper valuation of the claim, 2ndly, limitation; and 3rdly, an
averment that the parties have been in a state of separation for
fifty years

Issue

Whether the four degrees are to be counted from the original holder of
property or the last holder?

Can the plaintiffs who lie after four degrees from the original holder
demand partition?

Defendants Arguments

The Defendants argued in Court that the Plaintiffs had no claim to partition
of property as they did not lie within the four degrees of the original holder
and were not coparceners to the ancestral property.

In support of this contention they also cited the passages of Katyayana and
Devala.

It was further urged that the law of partition is inseparably connected with,
and is indeed a part of the law of inheritance which is clearly founded on
the spiritual benefit which certain persons according to the religious ideas
of the Hindus are supposed to be capable of conferring on the deceased by
the gift of the funeral cake; that this capacity of benefiting the deceased
does not extend beyond the fourth in descent for Manu says, Chap. IX, 186,
but the fifth has no concern with the gift of the funeral cake;

Plaintiffs Argument

The Plaintiffs argued that the authorities quoted did not support the contention of the
appellants.

That the doctrine of ancestral property vesting by birth in ones son, grandson, and
great-grandson, was overlooked. The court explained their interpretation of the text
which was different from what the defendants were claiming.

In case A died, leaving two or more sons forming an undivided family, and they died
each of them, leaving one or more sons, and the same thing happened regularly for
several generations all the descendants of A, living in a state of union, as in this case,
the authorities quoted by defendants did not prevent any such descendants below
the fourth demanding a partition of their joint family property. ( Diagram 1) They
claimed that the right to participate doesnt cease at 4 th from the original holder.

The Plaintiffs also said that in case of Undivided family the Sapinda relationship
extends till the seventh generation and it is only in the case of Divided or Re-United
family that it is limited to four generations.

Analysis

The essence of a coparcenary under Mitakshara law is unity of

ownership. The ownership of the coparcenary property is in the whole
body of coparceners.

According to the true notion of an undivided family governed by

Mitakshara law, no individual member of that family, whilst it remains
undivided, can predicate, of the joint and undivided property, that he,
that particular member, has a definite share.

His interest is a fluctuating interest, capable of being enlarged by deaths

in the family, and liable to be diminished by births in family.

It is only on partition that he becomes entitled to a definite share. If a

Mitakshara coparcener dies immediately on his death his interest
devolves on the surviving coparceners.

Held

The Court in this case laid down that the four degrees required to
ascertain whether a co-owner can demand partition has to be counted
from the last holder of property and not the original holder.

Thus a person remotely linked with the original holder but within four
degrees of the last holder will still have an interest by birth in the
ancestral property.

Lying within the four degrees makes him a coparcener and he has the
right to demand partition at any time.