Kachra Kana of Pipalia vs Khant Ram Bhura and Another

Shah, C.J.—This revision application raises an interesting question whether in a suit for partition by a Hindu mother against her sons the right to sue survives on her death. Defendants Nos. 1 and 2 are the sons of the deceased Plaintiff, Bai Mina and Defendant No. 3 is an alienee from Defendants Nos. 2 and 3. Defendants Nos. 1 and 2 partitioned the joint family property between themselves and with Defendant No. 3 without giving their mother a share, to which she was entitled under the Hindu Law, and the mother therefore sued them and the alienee for her share in the family property. Defendant No. 1 did not appear in the suit and Defendants Nos. 2 and 3, who were the contesting Defendants, opposed the claim. On her death Pending the suit, Defendant No. 1 applied for being brought on the record as her legal representative and for being transposed as a Plaintiff.

The Assistant Judge, Gondal, held, on the analogy of a suit for partition by a Hindu coparcener, that the institution of the suit by mina effected a severance of the joint status and that on her death the suit could be continued by her legal representatives. The learned Judge also took the view that all that was necessary to constitute a partition was a definite and unequivocal indication by a member of a Joint Hindu family of an intention to separate and further that the institution of a suit for partition by such member is an unequivocal intimation of his intention to separate and that it effected a severance of the joint status. No doubt, this is true of a member of a joint Hindu family, but the learned Judge has fallen into the basic error of treating a Hindu mother suing for a partition on a par with a member of an undivided Hindu family.

There is a fundamental difference between the two. A member of an undivided Hindu family has an inherent right to separate and to that end to sue for his share, but a Hindu mother has no such right. She is not a coparcener and even a widow succeeding under the Hindu Women''s Rights to Property Act to her husband''s share in a joint family is not a coparcener. Therefore no question of a disruption of the joint status of the family arises in her case and her suit for a partition does not effect a severance obviously because in her case there is no jointness which can be severed. This ground on which the learned Judge has made the order is thus clearly unsustainable.

It is not clear whether the Hindu Women''s Rights to Property Act, 1937 which is not retrospective, applies in this case but assuming for the present purpose that it applies, the interest of the husband which devolves on a widow u/s 3(2) of the Act is a limited interest known as Hindu women''s estate as provided for in Section 3(3), though it is true she has the same right of claiming partition as a male owner. However, the interest being a limited interest in its essence, it becomes extinguished on her death and the estate reverts to her husband''s heirs who inherit not to her but to the husband. Therefore, in suing for a partition and possession of a share, Bai Mina was claiming a purely personal right. See-Mt. Manglan v. Hira Singh AIR 1931 Lah 675 (2) (A). No doubt in the case of a member of a joint Hindu family, this is a right attached to property, but it is not so in the case of a mother who takes a limited interest only.

It was held in- Rajrup Rai and Others Vs. Sheo Shankar Rai and Another, ), that the right of a member of a joint Hindu family to disrupt the joint family is a personal right, but the right to seek partition by metes and bounds after the family had been disrupted is a right attached to the ownership of the shares of the separated members and passes on their death to their heirs along with the right of ownership of the shares. That is so because of the peculiar status which a member of a joint Hindu family occupies. The status of a Hindu mother is altogether different in that she only gets a share of her husband where the Hindu Women''s Rights to Property Act 1937 applies; where the Act does not apply she is entitled to a share equal to that of the sons on the sons'' effecting a partition, but not otherwise. She has no inherent right of her own to a share in the joint family property. She is not a member of a joint Hindu family and has therefore no right to sue for a partition on such a footing.

Mr. Chinoy for opponent No. 1 argued that the mother may not have the right to sue for a partition (except where she can do so under the Hindu Women''s Rights to Property Act) but where the sons have already partitioned the joint family property without giving her a share, she is entitled to bring a suit for partition for her share. It is unnecessary to consider this particular aspect of the question and it may be assumed for the sake of discussion that she has such a right. Even so the very interest that she takes is a limited interest and her claim is a purely personal one which becomes extinguished on her death. Therefore, whether Bai Mina had the right to sue for a partition or otherwise, the right to sue does not survive and her legal representatives cannot be brought on the record and cannot continue the suit; and if the right to sue does not survive her suit abates under Order 22, Rule 1, Code of Civil Procedure. Defendant No. 1 is thus not entitled to be brought on the record as Mina''s representative and to be transposed as a Plaintiff. The revision application is therefore allowed and the order of the learned Judge is set aside. Opponent No. 1 to pay the applicant''s costs of the revision and to bear his own. Opponent No. 2 to bear his own costs.