R.F.NARIMAN, J. - (1.) Leave granted.
(2.) The present appeal is by the plaintiff who filed a suit for partition, being Suit No.5A of 1999 before the Second Civil Judge, Class II Devas, Madhya Pradesh, dated 28.12.1998, in which the first four defendants happened to be his father (defendant No.3), and his father's three brothers i.e. defendant Nos. 1,2 and 4. He claimed a 1/8 th share in the suit property on the footing that the suit property was ancestral property, and that, being a coparcener, he had a right by birth in the said property in accordance with the Mitakshara Law. A joint written statement was filed by all four brothers, including the plaintiff's father, claiming that the suit property was not ancestral property, and that an earlier partition had taken place by which the plaintiff's father had become separate. The trial court, by its order dated 20.12.2000 decreed the plaintiff's suit holding that it was admitted by DW.1 Mangilal that the property was indeed ancestral property, and that, on the evidence, there was no earlier partition of the said property, as pleaded by the defendants in their written statements.
(3.) The first Appellate Court, by its judgment dated 12.1.2005, confirmed the finding that the property was ancestral and that no earlier partition between the brothers had in fact taken place. However, it held that the plaintiff's grandfather, one Jagannath Singh having died in 1973, his widow Mainabai being alive at the time of his death, the said Jagannath Singh's share would have to be distributed in accordance with Section 8 of the Hindu Succession Act, 1956 as if the said Jagannath Singh had died intestate, and that being the case, once Section 8 steps in, the joint family property has to be divided in accordance with rules of intestacy and not survivorship. This being so, no joint family property remained to be divided when the suit for partition was filed by the plaintiff, and that since the plaintiff had no right while his father was alive, the father alone being a Class I heir (and consequently the plaintiff not being a Class I heir), the plaintiff had no right to sue for partition, and therefore the suit was dismissed and consequently the first appeal was allowed.;