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7. The Trial Court after considering the evidence brought on record of the case by the parties concluded that Marappa Gounder died on 15.04.1949 and thus, the suit property would devolve upon the sole son of deceased Ramasamy Gounder, the deceased brother of Marappa Gounder by survivorship and the plaintiff-appellant had no right to file the suit for partition and, accordingly, dismissed the suit.

8. The findings recorded by the Trial Court particularly in respect of the date of death of Marappa Gounder in 1949 was confirmed by the High Court in the first appeal and the decree dismissing the suit for partition was affirmed holding that the property would devolve upon the defendant by way of survivorship.

11. He further points out that there are three classes of heirs recognized by Mitakshara, namely, (a) Gotrajasapindas, (b) Samanodakas and

(c)Bandhus. The first class succeeds before the second and the second succeeds before the third. To support the contentions, he made a reference to Mulla Hindu Law 23 rd Edition. He also submitted that under the Hindu Law, a daughter is not disqualified to inherit in separate property of her father and when a male Hindu dies without a son leaving only daughter, his separate property would devolve upon the daughter through succession and the property will not devolve upon brother’s son through survivorship and the Courts below have wrongly applied the principles of Hindu Law and dismissed the suit. In support of his contention, he cited references from various commentaries which we shall deal with at appropriate place.

18. In the backdrop of the above facts, the primary issue which arises for our consideration is with respect to the right of the sole daughter to inherit the self-acquired property of her father, in the absence of any other legal heir having inheritable rights before the commencement of the Hindu Succession Act, 1956 or in other words, whether such suit property will devolve on to the daughter upon the death of her father intestate by inheritance or shall devolve on to father’s brother’s son by survivorship.

But to look more closely into the Hindoo law. When property belonging in common to a united Hindoo family has been divided, the divided shares go in the general course of descent of separate property. Why, it may well be asked, should not the same rule apply to property which from its first acquisition has always been separate We have seen from the passage already quoted from Macnaghten’s “Hindu Law,” that where a residue is left un-divided upon partition, what is divided goes as separate property; what is undivided follows the family property; that which remains as it was, devolves in the old line; that which is changed and becomes separate, devolves in the new line. In other words, the law of succession follows the nature of the property and of the interest in it.