History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.1099

v4.c63.1099

The Mitākṣarā is quite clear on the point that the son has an absolute right of partition of ancestral property during his father's lifetime even against the father's wish. The discussion in the Mitākṣarā may be briefly set out here. In Yāj. II. 120 (latter half) it is stated that in the case of grandsons the partition is according to (or through) the fathers i. e. it is *per stirpes* and not *per capita*. The text of Yāj. (*anekapitṛkāṇām*¹⁰⁶⁸ *tu pitṛto bhāgakalpanā*) is explained by the Mitākṣarā in this way that although sons and grandsons have rights of ownership by birth in the grandfather's property, yet when each of several sons dies leaving a differing number of sons (one leaves two, another three and so on) or when some sons are alive and others die leaving their own sons, then partition takes place *per stirpes* i. e. the grandsons born of a particular deceased son get among themselves the share which their deceased father would have got if living i. e. grandsons appear to get partition of property through the son (their father) and not directly by themselves. On this a doubt arises as follows:—If the father of several sons is separated from his brothers as to the grand-father's property or if the father has no brother and is joint with his father (i. e. the grandfather of the grandson) the grandson cannot demand a share in the grandfather's wealth (since Yāj. II. 120 has been explained as meaning that when the father is dead then the assignment of shares among grandsons is according to the share of the father). Another doubt is :—even if a partition can be had by the grandsons in these cases it will be only if the father so desires. To this the Mit. replies emphatically¹⁰⁶⁹ that in the grandfather's property the ownership of father and son is wellknown in the world and therefore *partition* (in the above two cases of doubt) does take place. The Mit. further on expressly says that even when the mother is not past child-bearing and the father still cares for wealth and worldly affairs, partition of grandfather's wealth does take place at the desire of the son even if the father is unwilling. The Mit. makes it clear that the rule of division *per stirpes* is a special rule laid down by the texts (*vācanikī vyavasthā*) for a special case and that in other cases the primary rule of ownership by birth applies. From Manu IX. 209 the Mitākṣarā further draws the inference that even against the father's wish a son can demand partition of property acquired by the grand-father. This is the modern Hindu Law in the Mitākṣarā school generally recognised by the Courts in British India. In *Apaji Narhar*¹⁰⁷⁰ *v. Ramchandra* a majority of the Full Bench of the Bombay High Court held that a son cannot in the lifetime of his father sue his father and uncles for a partition of the family property and for possession of his share therein, when the father does not assent to such a suit, although the son has a right by birth in ancestral property. The other High Courts have dissented from this view of the majority of the Bombay Full Bench and have followed the dissenting judgment of Telang J.¹⁰⁷¹