birth:

and consideration which arises from his belonging to a family Rights arise by possessed of greater or less wealth (§ 217). As he dies out his claims cease, and as others are born their claims arise. But the claims of each spring from the mere fact of their entrance into the family, not from their taking the place of any particular individual. Deaths may enlarge the beneficial interest of the survivors, by diminishing the number who have a claim upon the common fund, just as births may diminish their interests by increasing the number of claimants. But although the fact that A. is the child of B. introduces him into the family, it does not give him any definite share of the property, for B. himself has none. Nor upon the death of B. does he succeed to anything, for B. has left nothing behind to succeed to. Now in the rest of India the position of an undivided family is exactly the same, except that within certain limits each male member has, and in Bengal some females have, a right to claim a partition, if they like. But until they elect to do so, the property continues to devolve upon the members of the family for the time being by survivorship and not by succession. The position of any par- are ascertained ticular person as son, grandson, or the like, or as one of by partition. sons or grandsons, will be very important when the time for partition arrives, because it will determine the share to which he is then entitled. But until that time arrives he can never say, I am entitled to such a definite portion of the property; because next year the proportion he would have a right to claim on a division might be much smaller, and the year after much larger, as births or deaths supervene. For instance, suppose a family

A.

many

to consist only of A. and his sons B. and C., on a partition each would take one-third. But if D. was born while the family remained joint, each would take one-fourth. Supposing the family still to remain undivided, on the death of A. the possible shares of the three sons would be enlarged to one-third; and if B. were subsequently to die without issue, they would again be

Mitakshara.

Bengal.

The coparcenary

enlarged to one-half. As C. and D. married, their sons E., F. and G. would enter into the family and acquire an interest in the property. But that interest again would be a shifting interest, depending on the state of the family. If C. were to die, leaving only two sons E. and F., and they claimed a partition, each would take one-half of one-half. But if X. had previously been born, each would only take one-third of onehalf. If they put off their claim for a division till D., G., H. and I. had all died, they would each take one-third of the whole. It is common to say that in an undivided family each member transmits to his issue his own share in the joint property, and that such issue takes per capita inter se, but per stirpes as regards the issue of other members. But it must always be remembered that this is only a statement of what would be their rights on a partition. Until a partition their rights consist merely in a common enjoyment of the common property, to which is further added, in Provinces governed by Mitakshara, the right of male issue to forbid alienations made by their direct ancestors (d)." It must be remembered, however, that these observations require modification in Bengal. There, "admitting the family to have been joint, and the sons joint in estate, the right of any one of the co-sharers would not, under the Hindu law, pass over, upon his death, to the other co-sharers. It would be part of the estate of the deceased co-sharer, and would devolve upon his legatees or natural heirs" (e). The share of an undivided brother will pass to his widow, daughter and daughter's son, and may thus vest in a family completely different from his own (§ 450).

§ 244. Now it is at this point that we see one of the most important distinctions between the coparcenary and the general body of the undivided family. Suppose the property to have all descended from one ancestor, who is still alive, with five generations of descendants. It by no means follows that on a partition every one of these five generations will be entitled to a share. And if the common ancestor dies, so that the pro

(d) See this subject discussed, Appovier v. Rama Subbaiyan, 11 M. I. A. 75; Sadabart Prasad v. Foolbash Kooer, 3 B. L. R. F. B. 31; Ram Narain v. Pertum Singh, 20 W. R. 189; Debi Pershad v. Thakur Dial, 1 All. 105; Raol Gorain v. Te a Gorain, 4 B. L. R. Appx. 90.

(e) Per L. J. Turner, 6 M. I. A. 553.

perty descends a step, it by no means follows that it will go by survivorship to all these generations. It may go to the representatives of one or more branches, or even to the widow of the survivor of several branches, to the total exclusion of the representatives of other branches. The question in each case will be, who are the persons who have taken the interest in the property by birth (f). The answer will be, that they are the persons who offer the funeral cake to the owner of the property. That is to say, the three generations next to the owner in unbroken male descent (g). Therefore, if a man has living, sons, grandsons, and great-grandsons, all of these constitute a single coparcenary with himself. Every one of these descendants is entitled to offer the funeral cake to him, and therefore every one of them obtains by birth an interest in his property. But the son of one of the great-grandsons would not offer the cake to him, and therefore is out of the coparcenary, so long as the common ancestor is alive. But while fresh links are continually being added to the chain of descendants by birth, so earlier links are being constantly removed from the upper end of the chain by death. So long as the principle of survivorship continues to operate, the right to the property will devolve from those who are higher in the line to those who are lower down. As each fresh member takes a share, his descendants to the third generation below him take an interest in that share by birth. So the coparcenary may go on widening and extending, until its members may include persons who are removed by indefinite distances from the common ancestor. But this is always subject to the condition that no person who claims to take a share is more than three steps removed from a direct ascendant who has taken a share. Whenever a break of more than three degrees occurs between any holder of property and the person who claims to take next after that holder, the line ceases in that direction, and the survivorship is confined to those collaterals and descendants who are within the limit of three degrees. This was laid down in two cases in Bombay and Madras.

§ 245. In the former case the claim to partition was resisted,

(ƒ) This principle will not apply in Bengal, where sons take no interest by birth in their father's property. See ante, § 232.

(g) Manu, ix. § 186; post, § 424.

limited to those who partake in the funeral cake.

Coparcenary not limited to three degrees from

common ancestor.

on the ground that the plaintiff was beyond the fourth degree from the acquirer of the property in dispute, the defendant being within that degree. It was argued that the analogy of the law of inheritance prevented a lineal descendant, beyond the great grandson, from claiming partition at the hands of those who are legally in possession, as descendants from the original sole owner of the family property or any part of it (h). West, J., said, "The Hindu law does not contemplate a partition as absolutely necessary at any stage of the descent from a common ancestor; yet the result of the construction pressed on us would be to force the great grandson in every case to divide from his coparceners, unless he desired his own offspring to be left destitute. Where two great-grandsons lived togetheras a united family, the son of each would, according to the Mitakshara law, acquire by birth a co-ownership with his father in the ancestral estate; yet if the argument is sound, this co-ownership would pass altogether from the son of A. or B., as either happened to die before the other. If a coparcener should die, leaving no nearer descendant than a great-greatgrandson, then the latter would no doubt be excluded at once from inheritance and from partition by any nearer heirs of the deceased, as, for instance, brothers and their sons; but where there has not been such an interval as to cause a break in the course of lineal succession, neither has there been an extinguishment of the right to a partition of the property in which the deceased was a co-sharer in actual possession and enjoyment (¿). Each descendant in succession becomes co-owner with his father of the latter's share, and there is never such a gap in the series as to prevent the next from fully representing the preceding one in the succession." The same principles were illustrated in detail by Mr. Justice Nanabhai Haridas. He said (k), "Take, for instance, the following case. A., the original owner of the property in dispute, dies, leaving a son B. and a grandson C., both members of an undivided family. B. dies, leaving C. and D., son and grandson respectively; and C. dies, leaving a son D. and two grandsons by him, E. and F. No

(h) Moro Vishvanath v. Ganesh Vithal, 10 Bomb. H. C. 444, 449.) (i) See per Jagannatha, 3 Dig. 446-450.

(k) 10 Bomb. H. C. 463.

partition of the family property has taken place, and D., E., and F. are living in a state of union. Can E. and F. compel

D. to make over to them their share of the ancestral property? According to the law prevailing on this side of India they can, sons being equally interested with their father in ancestral property (1). In the same way, suppose B. and C. die, leaving A. and D. members of an undivided family, whereupon the

whole of his property devolves upon D., who thereafter has two sons, E. and F. They, or either of them, can likewise sue their father D. for partition of the said property, it being ancestral. Now suppose B. and C. die, leaving A., D., and D.', members of an undivided family, after which A. dies, whereupon the whole of his property devolves upon D. and D.' jointly, and that D. thereafter has two sons, E. and F., leaving whom D. dies. A suit against D.' for partition of the joint ancestral property of the family would be perfectly open to E. and F., or even to G. and F., if E. died before the suit. It would be a suit against D.1 by a deceased brother's sons, or son and grandson (m). But E. and F. are both fifth, and G. sixth in descent from the original owner of the property, whereas D. and D.1 are only fourth. Suppose, however, that A. dies after D. leaving a

(7) 1 Stra. H. L. 177; 2 Ibid. 316; Mit. i. 1, § 27, i. 5, § 3, 5, 8, 11; V. May, iv. 6, § 13.

(m) V. May, iv. 4, § 21.