SUBBA AIYAR Vs. GANASA AYYA
HIGH COURT OF MADRAS
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(1.) Appellants are brothers and respondents are the sons of the second appellant Natesayyan. Respondents sued appellants for partition, and the question raised for decision in this appeal is whether the suit is maintainable under the Mitakshara law.
(2.) The property, of which partition is decreed by the Subordinate Judge, is admittedly ancestral, and it is conceded that if the second appellant had no brothers the suit would lie. The contention on appellant's behalf is that when the father has brothers, and when he is alive, the sons cannot enforce partition against his will according to the Mitakshara. We are of opinion that both in principle and on authority the contention must be disallowed. The son's right to demand partition from his father arises from the coparcenary right of the former by birth, and it is confined to ancestral property, because the son and the father confer equal spiritual benefit upon the grandfather and ancestors and they have equal right in such property, whilst in paternal property the father has a dominant right as its acquirer. The basis on which the son's right of partition rests is the same whether the father has brothers or not and there is therefore no legal foundation for the contention.
(3.) It is further at variance with placita 8 and 11, Mitakshara, Chapter I, Section V.;
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