History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.1189.1

v4.c63.1189.1

Every coparcener is entitled to a share on partition. It has been already stated (on pp. 570-571) how in Bombay a son is not entitled to a partition if the father is *joint* with his own father, brothers or other coparceners and does not assent to the son's claim. There is a volume of case-law about a suit for partition brought on behalf of a minor, but it has to be passed over here, as there is hardly anything corresponding to this in the works on dharmaśāstra. The texts provide for the case of a son who was in the mother's womb at the time of partition but was born after it. If A and his sons B and C, who are members of a joint family, come to a partition and take one third each of the family property and six months later A's wife gives birth to a son D, then the partition has to be reopened and D will get ¼ (⅕ if the mother is given a share) of the family property that will remain after meeting all proper charges since the first partition and taking into account all income and accretions during the interval. The same rule applies to a partition among brothers, when the widow of a predeceased brother gives birth to a posthumous son conceived before the partition but born after it. Vide Yāj.¹¹²⁶ II. 122 and Viṣṇu Dh. S. 17. 3. Vasiṣṭha (17. 40-41) therefore recommends that when it is known that the wives of some brothers (predeceased) are pregnant the other brothers should postpone partition till the delivery of those women.