Basist Narain Singh vs Bindeshwari Prosad Singh and Others

Das, J.—This appeal arises out of a suit for partition instituted by the respondents against the appellant. One Parmeshwar Narain Singh died in January, 1923, leaving one son by his deceased wife and a widow and three minor sons by her. The plaintiffs are the sons of Parmeshwar by his second wife who is defendant No. 2 in this suit, His son by his deceased wife is the defendant-appellant. The plaintiffs are the minor sons and are represented in the record of this suit by their maternal uncle as their next friend.

Three material points were taken in the written statement, first that the suit is not for the benefit of the minor plaintiffs, secondly, that the parties originally came from Oudh, and that according to custom "partition takes place on the basis, of Patni Bhag and as such the defendant is entitled to a share equal to half of the whole property and the other half should go to the plaintiffs and their mother" and thirdly, that the widow of the deceased is not entitled to a share out of the whole estate. The learned Subordinate Judge has decided all these points against the defendant and has given the plaintiffs a decree substantially as claimed by them. He has also held that defendant No. 2 is entitled to a share equal to that of each of the sons.

So far as the first point is concerned, I have no doubt whatever that the suit is for the benefit of the minors. The defendant is actually in possession of the entire estate and he has put forward a title to a moiety of the estate. As I shall presently show, there is not the slightest foundation for the claim put forward on behalf of the defendant. The parties are not on good terms and I have no doubt whatever that the plaintiffs will suffer considerable loss if the estate is left in the hands of defendant No. 1.

So far as the second point is concerned, the case of the defendant appears to be that under some custom he takes a moiety of the estate being the only son of one of the wives of the deceased and that the plaintiffs being the sons of the other wife as between them take a moiety of the estate. The defendant seems to base his case on some custom recognised in Oudh, but no such custom has been established. The learned Subordinate Judge has dealt with this matter and, in my opinion, the conclusion at which he has arrived is right and must be affirmed.

The last point raised on behalf of the defendant in the written statement is settled by authorities which are binding on this Court. The contention of the appellant is that the mother on partition is entitled to a share only out of her own son''s share. This is, no doubt, the law in families governed by the Bengal School of Hindu Law. See Hemangini Dasi v. Kedarnath Kundu Chowdhry 16 C. 758 : 16 I.A. 115 : 13 Ind. Jur. 210 : 5 Sar. P.C.J. 374 : 8 Ind. Dec. 502 . It was contended before us that although that case was a case of Dayabhaga, still the decision of the Judicial Committee is of general application and applies to Mitakshara family. I am unable to accept this contention as well-founded. In dealing with the case the Judicial Committee expressly referred to the texts which are binding in Bengal School of Hindu Law. They did not deal with the Mitakshara text and I am unable to hold that that decision should govern a case under the Mitakshara Law.

The leading case applicable to Mitakshara is that of Damoodur Misser v. Senabutty Misrain 8 C. 537 : 6 Ind. Jur. 584 : 10 C.L.R. 401 : 4 Ind. Dec. 346. The decision was based on the Mitakshara, Ch. I, Section 7, verse 1, where it is said that "of heirs dividing after the death of the father, let the mother also take an equal share", It was conceded that the text left it in doubt whether the term mother included step-mother, but Mr. Justice Mitter, who had a profound knowledge of the Hindu Law, examined the various texts which are of authority in the country governed by the Benares School of Hindu Law and came to the conclusion that "according to all the leading authorities of the Mitakshara School both mother and step-mother are equal sharers with the sons". The decision of Mr. Justice Mitter has been consistently followed. See Damodardas Maneklal v. Uttamram Maneklal 17 B. 271 : 9 Ind. Dec. 177 Mathura Prasad v. Deoka A.W.N. (1890) 124 Har Narain v. Bishambhar Nath 31 Ind. Cas. 907 : 38 A. 83 : 13 A.L.J. 1129 Suba liaut v. Mania Rautain (6). The last mentioned decision is of this Court and is binding on us. I hold that the decision of the learned Subordinate Judge is right and must be affirmed.

A new point was taken before us and is to the effect that as the widow has already received stridhan from her husband her share should be reduced to half the share of the son. The argument is founded on the text of Mitakshara as contained in Ch. I, Section 7, verse 2, which is as follows: "Of heirs making a partition after the decease of the father the mother shall take a share equal to that of her son, provided no stridhan had been given to her. But, if any had been received by her she is entitled to half a share, as will be explained". The point was, however, not taken in the written statement and no issue was framed on this point by the learned Subordinate Judge. Mr. Jayaswal, however, relies upon the finding of the learned Subordinate Judge to the effect that there are ornaments belonging to the widow which cannot be the subject-matter of the partition. It appears that the defendant, claimed that the ornaments should be partitioned between the parties. The learned Subordinate Judge held that those ornaments were the personal properties, namely, stridhan of defendant No. 2 and could not be held to be joint family properties. I am willing to accept that the widow is in possession of certain ornaments which were given to her by her husband. The value of these ornaments has not been ascertained and we are unable to say what their value is. But apart from any other consideration, I do not think that when the text-writers lay down that the possession of stridhan should by itself reduce the claim of the widow to one-half, they meant to include ornaments within Wie term. A share given to a widow on partition is in lieu of maintenance and it is difficult to understand how a widow can possibly maintain herself out of ornaments. Stridhan in the text clearly means stridhan capable of producing an income. I am accordingly of opinion that the contention of Mr. Jayaswal must be overruled.

I would dismiss this appeal with costs.

Adami, J.

I agree.