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One of the grounds relied upon by the trial Court in support of its decision was that the suit was not maintainable in view of the decision of the High Court of Bombay in Apaji Narhar Kulkarni v. Ramachandra Ravii Kulkarni. (1892) ILR 16 Bom 29 (FB), in which it was held that under Mithakshara law a son could not in the lifetime of his father sue his father and uncles for a partition of the joint family properties and or possession of his share therein when the father was not assenting thereto. Against the decision of the trial Court, the plaintiffs appealed to the lower appellate Court. The lower appellate Court dismissed the appeal on the sole ground that it was not maintainable in view of the ruling in Apaji's case. (1892) ILR 16 Bom 29 (FB), referred to above. Aggrieved by the Judgment and decree of the lower appellate Court, the plaintiffs have filed this second appeal.

2. After hearing the counsel for the parties Bhimiah, J. before whom the above appeal came up for hearing earlier, referred the appeal to a Division Bench under Section 8 (2) of the Mysore High Court Act by his order dated 13-4-1972 since he considered the question of law involved in this case was of considerable importance.

3. Sri T. S. Ramachendra, the learned counsel for the appellants, at the outset submitted that the decision of the lower appellate Court which rested solely on the decision in Apaji's case. (1892) ILR 16 Bom 29 (FB). was erroneous. He contended that the said decision was based on an incorrect understanding of the relevant text of Mithakshara Law, and, therefore, the correctness of the said decision required to be re-examined. He brought to our notice the decisions of other High Courts, to which reference would be made at a later stage, in which a contrary view had been taken. It was further submitted that in view of the decision of the Supreme Court in Puttarangamma v. M. S. Ranganna. , the view expressed in Apaii's case. (1892) ILR 16 Bom 29 (FB). should be treated as having been impliedly overruled.

8. The above view of Justice Telang expressed in the opinion in Apaji's case, (1892 ILR 16 Bom 29 (FB) is in accord with the views of other High Courts in India, Before referring to the decisions of other High Courts, we would like to refer to two more decisions of the High Court of Bombay in which the opinion expressed in Apaii's case (1892) ILR 16 Bom 29 (FB) is followed.

9. In Jivabhai Vadilal v. Vadilal Sakarchand (1905) 7 Bom LR 232, Tyabji, J. while dealing with a case to which Mayukha applied, observed as follows:--

"during the argument in Court, three points were mainly discussed be* fore me, viz: first, whether the case of Apaji v. Ramachandra, (1892) 16 Bom 29 (FB). to be regarded as an absolutely conclusive authority as regards the Mitakshara law on this point; Secondly, whether as a matter of fact there is any real and substantial conflict between the Mitakshara and the Mayukha on the point I have to decide; and thirdly, whether if there is any such conflict, the Mayukha ought to prevail over the Mitakshara.