JUDGMENT 1. - Heard the learned counsel for the parties at length. 2. Lehan Singh was the recorded khatedar of agricultural land of 66 bighas who passed away some where in the year 1949. At that time he had a son Hari Singh and also a grand son Jangir Singh son of Hari Singh. The mutation of 66 bighas was entered in the name of Hari Singh. Hari Singh by a registered "tamliknama" dated 30.9.1959 gifted 21 bighas of the above land in favour of his son Jangir Singh. Hari Singh also passed away some where in the year 1968. Upon which when mutation of his agricultural land was to be entered, Jangir Kaur and Jal Kaur, two daughters of Hari Singh, also raised objections. Jal Kaur filed a declaratory suit before the Assistant Collector, Hanumangarh wherein plea of Jangir Singh was that 66 bighas agricultural land being coparcener property in the hand of his father Hari Singh, he was the co-owner. As soon he was born he became coparcener for 33 bighas being the only son of Hari Singh. His second plea was that out of 33 bighas share of Hari Singh 21 bighas was bequeathed to him by registered gift deed dated 30.9.1959 and out of remaining 12 bighas land left with Hari Singh upon his death in the year 1968 he alongwith his two sisters were equally entitled to four bighas each. 3. Learned Assistant Collector, Hanumangarh decreed the suit and the appeal filed before the Revenue Appellate Authority, Hanumangarh was also dismissed and second appeal filed before the Board of Revenue was accepted on the plea that another daughter Jangir Kaur was not made a party and the matter was remanded back to the Assistant Collector, Hanumangarh with the direction that after giving an opportunity of hearing to Jangir Kaur suit filed by Jal Kaur be decided afresh. After remand Jangir Singh filed a separate suit making Jal Kaur and Jangir Kaur as defendants which after hearing both the parties was dismissed by the Assistant Collector, Hanumangarh. Appeals filed before the Revenue Appellate Authority, Hanumangarh and Board of Revenue, Ajmer were also dismissed. Hence these petitions u/Art. 226 of the Constitution of India. 4. After remand Jangir Singh filed a separate suit making Jal Kaur and Jangir Kaur as defendants which after hearing both the parties was dismissed by the Assistant Collector, Hanumangarh. Appeals filed before the Revenue Appellate Authority, Hanumangarh and Board of Revenue, Ajmer were also dismissed. Hence these petitions u/Art. 226 of the Constitution of India. 4. Meanwhile, there was no stay, therefore, mutation of 66 bighas land left by Hari Singh was entered in the name of Jal Kaur to the extent of 15 bighas whereas remaining 51 bighas land was mutated in the name of Jangir Singh because Jangir Kaur relinquished her share in favour of her brother. A partition suit was also filed on behalf of Jal Kaur in which a preliminary decree was passed by the Assistant Collector, Hanumangarh on 26.11.1983 in which share of Jal Kaur was ascertained as 15 bighas and for giving the possession by metes and bounds, report of the concerned Tehsildar was sought. The preliminary decree was challenged by Jangir Singh before the Revenue Appellate Authority, Hanumangarh which was dismissed vide order dated 19.1.1987. The second appeal filed before the Board of Revenue was dismissed vide order dated 21.3.1994. The Board of Revenue by this order also dismissed the appeal. Hence Jangir Singh filed petition No. 1838/1994 u/Art. 226 of the Constitution of India. 5. The main point for determination is what was the share of Jal Kaur in the agricultural land left by her father Hari Singh and whether "tamliknama" dated 30.9.1959 confers any right in favour of Jangir Singh. 6. In the suit filed by both the parties before ACM, Hanumangarh no where it was stated by Jangir Singh that ever partition took place. However, reference of registered "tamliknama" dated 30.9.1959 was found there. It is an admitted legal position that unless and until the share of the coparcener is partitioned, the property cannot be gifted. 7. Learned counsel for the petitioner Mr. Trivedi relied upon clause 322 of Principles of Hindu Law by Mulla 15th Edition in which it has been stated as under:- "According to the true notion of an undivided Mitakshara family, no individual member of that family, whilst it remains undivided, can predicate of the joint property, that he-that particular member has a certain definite share, one-third or one-fourth. Trivedi relied upon clause 322 of Principles of Hindu Law by Mulla 15th Edition in which it has been stated as under:- "According to the true notion of an undivided Mitakshara family, no individual member of that family, whilst it remains undivided, can predicate of the joint property, that he-that particular member has a certain definite share, one-third or one-fourth. Partition, according to that law, consists in a numerical division of the property; in other words, it consists in defining the shares of the coparceners in the joint property; an actual division of the property by metes and bounds is not necessary. Once the shares are defined, whether by an agreement between the parties or otherwise, the partition is complete. The property ceases to be joint immediately the shares are defined, and henceforth the parties hold the property as tenants-in- common." 8. The above principle applied to the property under the old Hindu Law and in that also numerical divisions were defined. It is an established legal position that in coparcenry property a son gets a share equal to that of his father immediately upon his birth and, therefore, shares in the coparcener property of the coparcener are never static. As soon a new male member is born shares are decreased and unfortunately as and when a male coparcener dies the shares of the remaining coparcener are increased. A definite share can be ascertained only upon partition by metes and bounds. The registered "tamliknama" dated 30.9.1959 has no legal sanctity because till then the partition between Hari Singh and his son Jangir Singh has not taken place, neither by metes and bounds nor otherwise. Had it been so, the above fact must have been found mentioned either in the written statement filed in the suit of Jal Kaur before the ACM, Hanumangarh or at least the same should have been mentioned in the suit filed by Jangir Singh himself in the Court of ACM, Hanumangarh. Even till date Jangir Singh is unable to tell the actual date of so called partition which has taken place between him and his father Hari Singh. No such averements have been pleaded in the petition pending before this Court. Even till date Jangir Singh is unable to tell the actual date of so called partition which has taken place between him and his father Hari Singh. No such averements have been pleaded in the petition pending before this Court. When registered "tamliknama" dated 30.9.1959 has no legal sanctity, the 21 bighas land given by it to Jangir Singh cannot fall in the share of Jangir Singh and it shall be deemed that Hari Singh has not made any valid and legal "tamliknama". 9. In 66 bighas land left by Hari Singh 33 bighas fell in the share of Jangir Singh as soon he was born, he being a male coparcener and the property in the hands of Hari Singh being a coparcenery property. In the remaining 33 bighas land left by Hari Singh in the year 1968 when he passed away, son Jangir Singh and both daughters Jangir Kaur and Jal Kaur are entitled to get equal shares of 11 bighas each. Jangir Kaur stated to have relinquished her share in favour of her brother Jangir Singh and she has not contested either before the Courts below or in the High Court, therefore, share of Jal Kaur was to be determined which was only 11 bighas whereas mutation of 15 bighas has been entered in her name. 10. The partition by metes and bounds is yet to be done. The preliminary decree passed by the Assistant Collector, Hanumangarh is amended to the above extent. He is directed to give 11 bighas land instead of 15 bighas to Jal Kaur. The metes and bounds partition is yet to be conducted according to the provisions of the Revenue law after getting report from the concerned Tehsildar. 11. Consequently, both these petitions are disposed of accordingly. Both the parties are bound down to appear before the ACM, Hanumangarh on 22.5.2002 who will thereafter proceed to issue final decree according to law with regard to 11 bighas of land in favour of Jal Kaur and with regard to remaining land in favour of Jangir Singh. He will do so as expeditiously as possible.Writ Petitions disposed of. *******