1921 (6) TMI 1 - HC - Indian Laws

Summary

Issues Involved:
1. Right to Partition and Extent of Share
2. Custom of Division by Wives (Patnibhaga) vs. Division by Sons (Putrabhaga)
3. Validity and Proof of Custom
4. Claim for Moopu

Issue-Wise Detailed Analysis:

1. Right to Partition and Extent of Share:
The plaintiff, the appellant, sought partition of family property against his father and three half-brothers, with a fourth half-brother born during the suit. The dispute centered on the extent of the plaintiff's share. The Subordinate Judge decreed a third share to the plaintiff, but the High Court reduced it to one-sixth, based on the principle that the father and each of his five children would take an equal share. The Privy Council did not find it necessary to pronounce on the possible third view that the plaintiff should have one-fifth, excluding the youngest half-brother born after the partition request.

2. Custom of Division by Wives (Patnibhaga) vs. Division by Sons (Putrabhaga):
The appellant argued that according to the sub-caste's custom, property should be divided by wives (patnibhaga) rather than by sons (putrabhaga). This custom would entitle him to a larger share as the only son of the first marriage. The Subordinate Judge accepted this custom, granting the plaintiff one-third of the property. The High Court, however, found the evidence insufficient to prove this custom. The Privy Council noted that both modes of division are recognized in Hindu Law, with putrabhaga being the general rule but patnibhaga being prevalent in certain areas and castes, especially among Sudras in Southern India.

3. Validity and Proof of Custom:
The plaintiff's evidence included various documents and oral testimonies supporting the custom of patnibhaga. The Subordinate Judge accepted this evidence, but the High Court found it insufficient. The Privy Council reviewed the evidence, including historical documents and testimonies, and concluded that the custom was sufficiently proven. The evidence showed that in the plaintiff's sub-caste, property was often divided by wives, with agreements or settlements executed to this effect.

4. Claim for Moopu:
The plaintiff also claimed Rs. 600 as a first charge on the property, representing the moopu provided for the first wife when the husband married a second time. The High Court accepted the custom of giving moopu, and the Privy Council agreed, noting that the evidence for moopu was as strong as for the custom of patnibhaga. The Privy Council concluded that the plaintiff was entitled to the moopu and a third share of the residue.

Conclusion:
The Privy Council advised reversing the High Court's decree and restoring the Subordinate Judge's decree, granting the plaintiff one-third of the property and the moopu. The appellant was also awarded costs in the High Court and the Privy Council.