Moro Vishwanath vs. Ganesh Vithal case held that a partition can be demanded by one or more than 4 degrees removed from the acquirer or original owner of the property sought to be divided.
FACTS:
- The plaintiffs and defendants are descendants of one Udhav, the original acquirer and common ancestor of the property in dispute. The former is beyond and the latter is within Udhav Ganesh’s 4th degree.
- Plaintiff, the great-grandson of Udhav who was removed more than 4 degrees from Udhav, demanded the partition of the Joint Family property from Moro (defendant).
LEGAL ISSUES:
Whether a person removed over 4 degrees from the original acquirer of the property could demand partition of the JOINT FAMILY PROPERTY?
CONTENTIONS:
Plaintiff’s contention
Appellants contended that partition in any case couldn’t be demanded by descendants of a common ancestor more than 4 degrees removed from the original acquirer of the property.
Defendant’s contention
Defendant contended that a person who removed over 4 degrees from the original acquirer of the property could demand partition of the Joint Family Property.
RATIO DECIDENDI:
Bench: Chintaman S. Chitnis, First Class Subordinate Judge of Ratnagirh.
- The authorities quoted did not prevent descendants below the 4th from demanding a partition of the Joint Family Property. They only laid out text which limits the right to partition of 4th in descent to cases of reunited coparceners & not undivided ones (as in the present case).
- The Court gave some illustrations:
- A lineal descendant of the original owner of the disputed property, B (son), C (grandson), D (great-grandson), and D had two sons, E & F (great-great-grandson). No partition of the family property has taken place and D, E, and F are living in a state of the union. Can E & F compel D to make over to them their share of the ancestral property? According to the law prevailing, they can, their sons being equally interested in their father’s ancestral property. In the same way, if B & C die, leaving A & D members of an undivided family, after which A dies, the whole of his property devolves upon D, who then has 2 sons, E &F. They, or either of them can likewise sue their father for the partition of the said property, it is ancestral.
- A is the original owner of the property in dispute. His three lineal descendants include B (son), C (grandson) & C’s two sons, D & D1 (grandsons). A D & D1 are members of an undivided family after which A dies, whereupon the whole of his property devolves upon D & D1 jointly and that D has two sons, E & F, leaving whom D dies. A suit against the partition of JF property would be perfectly open to E & F or even to G (son of E) & F, if E died before the suit-it would be a suit against D1 by a deceased brother’s sons or grandson, but E & F are both 5th and 6th in descent from the original owner of the property, whereas D & D1 are only 4th.
DECISION:
The rule is that a partition cannot be demanded by someone more than four degrees removed from the acquirer or original owner of the property, but it can be demanded by someone more than four degrees removed from the last owner, regardless of how far removed he is from the original owner.
CONCLUSION:
A partition can be demanded by one or more than 4 degrees removed from the acquirer or original owner of the property sought to be divided.
But it cannot be demanded by one more than 4 degrees removed from the last owner. However remote, he may be from the original owner because the coparcenary extends to 4 degrees from the last owner (extinction of coparcenary).
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