PARTITION OF THE ACQUISITIONS MADE BY Vyavastha 277. The acquirer has two shares of the property acquired by the use of the joint stock.* This is reasonable; for the acquisition is made on the part of the acquirer both by the use of the common property, and by personal labour; but on the part of the rest, simply, by means of the joint stock. "The brethren (u) participate in that property which Authority. one of them gains by valour (i) or the like, using some common property (a) either a weapon or a vehicle. To him (0) two shares should be given: but the rest should share alike."—Vyása. Dá. bhá. p. III. (a.) The using of common property must, however, be other than that of eating and clothing; inasmuch as a house-holder must use property for that purpose.-Sri-krishna's commentary on the Dáya-bhága. Sans. p. 124, (i) "Gained by valour"-refers (here) to what is acquired by valour by using the joint-stock; for it will be hereafter declared, that wealth acquired without the use of the joint stock is indivisible.— Dá. kra. sang. p. 73. KÁTYÁYANA propounds the gain of valour, &c.-" When (a soldier) performs a gallant action, despising danger; and favour is shown to him by his lord pleased with that action; whatever property is then received by him, shall be considered as gained by valour.”—Dá. bhá. p. 131. (u) The term 'brethren”—is merely illustrative, it comprehends also paternal uncles and the rest.-Dá. T. Sans. p. 17. (0) To him.'-that is, to the acquirer.-Dá. kra. sang. p. 70. Where the exertion of one is merely through the joint property, and the other contributes to the acquisition by his person and wealth, it is a rule suggested by reason, that the one shall have a single share, and the other two. Hence likewise it follows, that * Dí, kra, sang. p. 70;-Coleb. Da, bh. p. III;-Maca, H, L. Vol. I. p. 52. 278. If the joint stock be used, shares should Vyavastha be assigned to each person in proportion to the amount of his allotment, be it little or much, which has been used.-Dà. bhá. p. 114. Vyavastha 279. Should one member of an undivided family augment the joint stock by his sole exertions, he is not therefore entitled to a double share of the mentation. aug 280. Where several coparceners contribute Vyavastha? means and labour, or other mutual personal aid in the acquisition, there they share in proportion to their contribution, if known; otherwise, in equal shares. 281. Where a property is acquired by the use Vyavastha of one parcener's money and by another parcener's labour, there they both share it equally; but where it is acquired by one's money and another's money and labour, there the parceners who supplied funds shall have one share, and the other shall have two shares: and in both cases the rest of the parceners shall be excluded from participation. 282. The brother left to support or protect Vyavastha "He, who maintains the family of the brother studyAuthority. ing science, shall take, be he ever so ignorant, a share of the property gained by science."-NÁRADA. Although this text relate to the share of the property gained by science, yet it may be applied to the present case also, conformably to the maxim that 'the sense of the law ascertained in one instance, The personal aid calculated to entitle a parcener to a share on that account must, however, be equally valuable with the means contributed, or directly instrumental in making the acquisition. + See. Macn. H. L. Preliminary remarks, pp. XIII, XIV, is applicable in others also, provided there be no impediment."-See ante, pp. 425,426. 283. Shares are to be equal where the proporVyavastha tion is not specified. Because of the rule which directs equality where no (other) proportion is specified. See Coleb. Dig. Vol. III. p. 61. Legal opinions delivered in, and admitted by, the several Courts Q. Three Hindus (being uterine brothers) live as a joint and undivided family, and acquire some property real and personal, without relying on the patrimony. The eldest brother separates himself from his brothers, and takes the whole of the property exclusively, without coming to any division with his brethren. It appears that the acquisitions of the eldest exceeded those of his brothers. Under these circumstances, how should the property be distributed? The acquirer takes a double share on partition, where ancestral property has been used in making the acqui sition. R. In this case, three brothers living in a joint state, acquired the property real and personal by their own respective funds, without relying on the patrimony, and therefore each brother is entitled to a share corresponding to the extent of his separate funds applied by him towards the acquisition. If one of them had acquired it, relying on ancestral joint stock, the acquirer shall have twice as much as the rest; in other words, a double share. Should any one acquire property by dint of his own funds without using the common stock, the acquirer takes the whole acquisition. The authority for this opinion is the following doctrine of VYÁSA and JÁGNYAVALKYA laid down in the Dáya-bhága, &c. "If the joint stock be used, shares should be assigned to each person in proportion to the amount of his allotment, be it little or much, which has been used." "What a man gains by his own ability, without relying on the patrimony, he shall not give up to the co-heirs ; nor that which is acquired by learning." "Whatever else is acquired by the coparcener himself, without detriment to the father's estate, as a present from a friend, or a gift at nuptials, does not appertain to the co-heirs." "The brethren participate in that wealth, which one of them gains by valour or the like, using any common property, either a weapon or a vehicle, to him two shares should be given: but the rest share alike."-City Dacca. May 12th 1817.-Macn. H. L. Vol. II. Ch. V. Case 12. (pp. 158, 159.) Q. A person died, leaving four sons, and some self-acquired landed property. After the father's death, his sons lived together as a joint and undivided family, and they each purchased with their respective acquisitions some lands, which they annexed to the original estate. Under such circumstances, are the four brothers entitled to share the whole property equally, or otherwise? Property acquired by brothers should be distributed among them according to the labour and funds funds employed by each. R. The property acquired by the personal labour and funds of each of the brothers, and annexed to the original estate while they, after the death of their father, were living in a state of union, should there be any means of discriminating how much, either of funds or labour, was contributed by each of the brothers, will be distributed among them, according to their respective contributions. The ancestral property should, however, be distributed among them equally.-Rám-chander Dás versus Gangá-dhar Mahti. Macn. H. L. Vol. II. Ch. V. Case 14 (p. 160.) Q. The respondent and appellant, being uterine brothers, lived jointly till the month of September 1210, B. S. The respondent (the elder brother) had acquired money by acting as tahsil-dár or collector, ijárá-dár or farmer, and the like capacities; and the appellant also had earned money by acting as a gomáshtah or agent, farmer, and in other employments. They purchased landed property, some in the names of other persons, with their acquisitions, while they were living in a joint state in respect of food. There were no documents to show, with any accuracy, the proportions in which the parties had respectively contributed to the purchase of the lands in question; but it was clearly established, that the proportion contributed by the respondent was much the more considerable. Under these circumstances, will the estate which had been purchased by both the brothers, without the aid of patrimony, but with that of their own acquisitions, be equally divided among them, or is the elder brother, with whose money the greater part of the estates was purchased, entitled to any superior share; if so, to how much? Brothers living R. Property acquired by the appellant, living jointjointly are entitled ly with his brother, without using the paternal to share their acquisitions to the amount of the funds estate, becomes his exclusive property; and that purcontributed by them chased by the respondent, earned under the circumrespectively. stances stated, becomes his own estate. If the property was purchased with a greater share of the respondent's funds, the less sum being contributed by the appellant, while they were living together, each of them is entitled to share the estate, in proportion to the funds respectively contributed by them to the purchase of the property. Whatever property may be ascertained to have been purchased by each of the parties, each is entitled to, and such portion should be considered the exclusive property of each; but where the proportionate contribution of each may not be determined, there is no rule in the law by which the respective shares to which each is entitled, can be ascertained. Authorities: JÁGNYAVALKYA, cited in the Dáya-bhága and other tracts; "Whatever else is acquired by the coparcener himself without detriment to the father's estate, as a present from a friend, or a gift at nuptials, does not appertain to the co-heirs." "Shares should be assigned to each person in proportion to the amount of his allotment, be it little or much, which has been used." This is laid down in Dáya-bhága, Dáya-rahasya, and other authorities.-Sudder Dewanny adawlut, May 28th, 1811. Kushal Chakra-vartti versus Rádhá-náth Chakra-vartti. Macn. H. L. Vol. II. Ch. V. Case 8 (pp. 153, 154.) Q. Two brothers possessed an eight-anna share of an ancestral dependent talook, and lived apart, though the estate continued to be held by them in joint tenancy. The Zemindar or proprietor of the dependent talook seized the whole estate for the arrears due from the other eight-anna share. The elder brother died, leaving a daughter's son by one of his wives, and a widow. The second brother next died, leaving two sons. After the death of two brothers, the talook was still in the Zemindar's possession. One of the younger brother's sons, and the proprietors of the other eight-anna share, brought an action against the Zemindar to recover the property in question, while the elder's widow was alive; and afterwards settling the matter by compromise with the Zemindar, were reinstated in the possession of the |