History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.t1.48

v4.c63.t1.48

'Suppose A, the head of a Hindu joint family, dies leaving four sons, B, C, D, E and five grand-sons, B1, B2, B3, C1, D1 and then B dies. Then B3 receives his share, which is one-third of one-fourth (= one-twelfth), goes out of the family and the rest continue joint. Then C dies, then D, then E, and then B2. Then B1 sues C1 and D1 for his share. Here if we again apply the rule of *per stirpes* division, the property that remained at the date of the suit of B1 will be divided into three parts and B1, C1 and D1 (who represent three stocks, B, C, D) will each get one third of that property. This was so decided in *Pranjivandas v. Ichharam* 39 Bom. 734. The Madras High Court, however, holds that the rule of *per stirpes* applies only when all the coparceners desire a partition at the same time and that if only some members separate at one time and others on a later occasion, regard should be had to the share allotted at the first partition in computing the share to be allotted at the second partition. That is, according to the Madras High Court in the above case B1 will be entitled to one-third minus one-twelfth (which latter was allotted to B3 when he left the family). The Madras High Court says that its views are based not on strict principles of Hindu Law, but on necessary considerations of equity. Vide *Manjanatha v. Narayana* 5 Mad. 362 and *Narayana v. Shankar* 53 Mad. 1 (F. B. at p. 6).