Piara Lal vs Hirdey Nath and others

(1) This appeal arises out of a suit for partition and possession of the property described in para. 2 of the plaint and for declaration that defendant

1 had no claim, to the property which was acquired separately by the father of the plaintiff after partition.

(2) The following pedigree table will help in understanding the facts of the case:

HAR NARAYAN (COMMON ANCESTOR)

Mohan Lal (Defendant 4) Som Nath (Defendant 5) Prem Nath (Dead) (Married two wives) 1

Chand Rani Iqbal Rani (Dead) Hirdev Nath (Defendant 1)

Piare Lal (Minor Plaintiff) Tej Kishen (Born posthumous dead) Raj Kumari (Minor Defendant 2)

Prem Nath died leaving one son Hirdey Nath by his deceased wife Iqbal Rani and a widow Mst. Chanda Rani and two minor children Piare Lal

and Rajkumari. Piare Lal minor is the plaintiff in the suit. He has brought a suit for partition and possession through his next friend Pt. Balbhadar

Koul against his brother Hirdey Nath defendant 1, his uncle Mohan Lal defendant 4 and his son Som Nath defendant 5 and has also impleaded his

sister Raj Kumari as defendant 2 and Mst. Chanda Rani his mother as defendant 3.

(3) The plaintiff's case is that his father Pt. Prem Nath separated from his son Hirdey Nath defendant 1 in the year 1989 and lived joint with the

plaintiff, his mother and his sister till his death.Mohan Lal, his uncle, separated from his father in S. 1996 and executed a document by which some

of the ancestral property was partitioned and some of it remained joint. It is alleged in the plaint that as Hirdey Nath had separated from his father

in the year 1989 he had no claim over any property which Prerni Nath had acquired subsequent to the partition and a declaration was sought that

Hirdey Nath Defendant 1 had no claim to the property which was acquired by the plaintiff's father after partition.

(4) Hirdey Nath defendant resisted the suit on the grounds that he had not separated from his father; that the widow defendant 3 and the daughter

Raj Kumari defendant 2 were not entitled to any share in the ancestral property; that the plaintiff had not included some of the ancestral property in

the list mentioned in the plaint, and therefore, his suit was not maintainable. It was further averred that his father, Prem Nath had gifted some

portion of the land to deft. 3 his wife out of the ancestral property which he could not do and the gift made in favour of defendant 3 was invalid.

(5) Defendant 2 claimed maintenance and her marriage expenses while defendant 3 claimed her share in the property, left by her husband arm

stated that the gift of land made by her husband was in lieu of some ornaments which her husband had sold and utilised the amount on his illness.

(6) Mohan Lal and his son claimed onehalf of the ancestral property left by the common ancestor Har Narayan and also claimed a portion of the

rent of the land which had been realised by Prem Nath, the father of the plaintiff.

(7) The following material issues were struck by the trial Court:

(1) Had the entire property belonging to the parties been put into the hotchpotch? If not, what other property ought to have been included in the

ancestral property?

(2) Had defendant 1 separated during the lifetime of Pt. Prem Nath?

(3) Is the istridhan property belonging to defendant 1 in the hands of defendant 3 and is defendant 1 entitled to claim it in the present suit?

(4) In case of partition what are the respective shares to which the parties to the suit are entitled?

(8) The trial Court of District Judge, after considering the evidence oral and documentary adduced by the parties came to the conclusion that the

entire ancestral property had been included by the plaintiff in. the plaint for the purpose of partition; that defendant 1 had not separated from the

plaintiff's father in his lifetime; that the widow defendant 3 was not in possession of any Istridhan belonging to Mst. Iqbal Rani, mother of defendant

Mohan Lal defendant 4 and his son Som Nath were entitled to onehalf share in the ancestral property, the remaining onehalf was to be

partitioned between the plaintiff, Hirdey Nath defendant 1 and Mst. Chanda Rani defendant 3. Defendant 2 Raj Kumari was allowed maintenance

allowance of Rs. 30/ p.m. till her marriage and also her marriage expenses.

(9) The plaintiff Piare Lal has come up in appeal against this preliminary decree passed by the District Judge. On behalf of the plaintiffappellant it is

argued that the District Judge has erred in holding that no partition took place between Hirdey Nath and Prem Nath in S. 1989.

(10) We have been taken through the evidence produced by the plaintiff in regard to the alleged partition. Great reliance is placed by the

appellant's counsel on the will alleged to have been executed by Prem Nath dated 15th Poh 1996 and it is argued that in the will there is a clear

mention of the fact that partition of the property has been effected between Hirdey Nath and Prem Nath. It may be pointed out at the outset that

the document dated 15th Poh 1996 referred to by the appellant's counsel is not a will but is a mere recital of what Prem Nath had spent on his son

defendant 1. It appears that after the death of his first wife Prem Nath's relations became strained with his son Hirdey Nath and Hirdey Nath lived

separately from his father after the death of his mother. It is in evidence that Hirdey Nath defendant 1 removed some furniture to the house of his

sister where he was residing after his mother's death. This fact annoyed his father and on account of his strained relations with his son he executed

a deed in which he stated that certain properties were taken away by his son defendant 1 and that he was living separately from him. Mere recitals

of this nature would not go to show that partition had been effected between members of a joint Hindu family and that defendant 1 had received his

share out of the joint property.

(11) Another circumstance has been brought to our notice to show that partition was effected between the father & the son. Our attention has

been drawn to a written statement dated 29th Jeth 1997 filed by Bakshi Prem Nath in a suit which was instituted by one Dina Nath against Hirdey

Nath defendant and his father Bk. Prem Nath. This suit was for the recovery of the price of a butter churning machine which was purchased by

Hirdey Nath from Dina Nath. This suit was brought for the recovery of the price against Hirdey Nath and his father as they were considered to be

the members of the joint Hindu family. In that suit Prem Nath, father of Hirdey Nath, stated in the written statement that his son was living separate

from him and he was not responsible for the debt due from his son. The suit was decreed against Hirdey Nath defendant. The counsel for the

appellant argues that as the suit was decreed against Hirdey Nath alone it clearly showed that there was a disruption of the joint family and Hirdey

Nath had already separated from his father. We do not see any force in this contention. There was no definite issue raided by the trial Court in that

suit in regard to the jointness or otherwise of the family and merely because the suit was decreed against Hirdey Nath alone would not show that

he had separated from his father. Moreover a 'revision was preferred against the decree passed by the Judge Small Causes and the judgment of

the High Court in that revision application does, not show that any disruption of the joint family had taken place.

(12) The learned counsel has laid great stress. on the testimony of Sarva Nand, a domestic I servant of Prem Nath, and wants us to hold en the

basis of this evidence that Hirdey Nath had taken away his share of the property and had separated from his father. We have gone through the

evidence of Sarva Nand and we find that his evidence is vague and indefinite and does not establish the partition between Hirdey Nath and his

father Prem Nath. He has not been able to give the details of the property which is alleged to have been taken away by Hirdey Nath after his

mother's death. If Hirdey Nath had already separated from his father the latter would not have deposited Rs. 400 in the name of Hirdey Nath's

daughter at the time when partition took place between Prem Nath and his brother Mohan Lal.

(13) After going through the documentary and oral evidence we are satisfied that the finding arrived at by the trial Court that Kirdey Nath and

Prem Nath had not separated in S. 1989 is quite correct.

(14) Counsel for defendant 3 has pointed out i a mistake committed by the District Judge in calculating the share of his client. The District Judge

has remarked on p. 12 as follows:

According to para. 316 of Mulla's Hindu Law a widowed mother is entitled to a share equal to that of a son in the joint property and according to

subs. (2) of the same para the value of Istridhan received from her husband is to be deducted from her share. The daughter is not entitled to a

share but is onlyentitled to maintenance and marriage expenses. Therefore, at the time of partition between sons these 70 Kanals and 19 marlas

received by Chanda Rani are to be deducted from her share in the joint Hindu family property.

(15) The trial Court, has divided onehalf of 435 kanals and 15 marlas of land in village Palampura into three equal shares of 72 Kanals and 12

marlas each. Out of the share of Chanda Rani he has taken 70 Kanals and 19 marlas leaving 1 kanal and 13 marlas to her which she has to get

over and above the land which she has already received as a gift. The learned counsel for defendant 3 has argued that the method adiopted by the

District Judge is erroneous inasmuch as the widow is getting not! equal share with her sons but much less than the share of the sons which is not the

intention of the law. He has drawn our attention to para. 316 of Mulla's Hindu Law which reads as under:

(1) A mother cannot compel a partition so long as the sons remain united. But if partition takes place between the sons, she is entitled to a share

equal to that of a son in the coparcenary property.

(2) If the mother has received stridhana from her husband or fatherinlaw, its value ' should be deducted from her share.

(16) It is argued that if the mother has received stridhana she cannot be placed in a position of disadvantage and get a share which is much less

than the shares received by her sons.

The mother according to the learned counsel should get along with the stridhana equal share with the sons. In support of this contention reliance is

placed on a quotation in Hindu Law by Trevelyan on p. 317 in which it is laid down that if the wife has previously had separate property given to

her by her husband or fatherinlaw, she takes so much as with such property would amount to that of one of the sons. In S. 136 of Hindu Law by

Gour it is laid down that subject to any local law or usage to the contrary, the following female relations are each entitled to a share on partition :

(1) On a partition between the father and his sons, or between the sons, their mother and their grandmother are entitled to a share which with the

stridhan received from their husband or the fatherinlaw must equal a son's share.

(17) It is, therefore, clear that the mother on partition gets share in the joint family property equal to that of her son and in case she has already

received stridhan that has to be accounted for in order to make up her share equal to that of the son. It stands to reason that at the time of partition

the mother should not be in a worse position merely because she has received stridhan from her husband or from her fatherinlaw. The share of the

mother together with stridhan should be equal to that of her sons. The same view has been taken in a Calcutta case reported as 'Kishori , Mohun

v. Moni Mohun', 12 Cal 165 (A), wherein it has been laid down that on partition of the joint family property by the sons after their father's death,

the widow is entitled to get a share equal to that of each of the sons, and if she has received any property either by gift or legacy from the father,

she is entitled to so much only as with what she has already received would make her share equal to that of each of the sons.

(18) The District Judge has deducted from the share of the mother stridhan which she has already received from her husband and allotted to her

only the balance of 1 Kanal and 13 marlas over and above the land which she has received as a gift. This calculation is erroneous. The widow,

defendant 3, is entitled to onethird of 217 kanals and 17 1/2 marlas which comes to 72 kanals and 12 1/2 marlas. She has already received 70

kanals and 19 marlas as stridhan. The land received by her as stridhan is to be deducted out of the share allotted to her leaving 1 kanal and 13 1/2

marlas. The deducted portion of 70 kanals and 19 marlas of coparcenary property which has been taken away from the share of the mother will

have to be divided again equally between the mother & her sons, each coparcenary will receive 23 kanals & 13 marlas as onethird share. The

sons, therefore, will get 72 kanals and 12 1/2 marlas plus 23 kanals and 13 marlas i.e., 96 kanals and 5 1/2 marlas each whereas the widow will

get 70 kanals and 19 marlas which she has already got by way of gift and 25 kanals and 6 1/2 marlas (comprised of 1 kanal and marlas plus 23

kanals and 13 marlas) out of the coparcenary property making her share equal to that of the sons i.e., 96 kanals and 5 1/2 marlas.

(19) With the above modification in the shares, the plaintiff's appeal is dismissed. In view of the circumstances of the case the parties shall bear

their own costs in this Court.