JUDGMENT
Banerji, J.
1. One Ganga Ram died about 40 years ago, leaving three sons, namely, Gopil and Bliupal, sons by his first wife, and Chunni, son by his second wife Musammat Udni, who also survived him. Ganga Ram owned a 21/2 biswa share in mauza Amba Madanpur, After his death a partition of the property took place, one-half being recorded in the names of the sons by his first wife and the other half being recorded as held in equal shares by Chunni and his mother Musammat Udni. Musammat Udni died in 1869. Her son Chunni is also dead, and the quarter share, of which she was recorded as in possession, is now held by the three sons of Chunni, who, with their mother Musammat Lado, are the defendants to this suit. The plaintiffs are the sons of Gopal and Bhupal. Their case is that Musammat Udni held the share which was recorded in her name by way of maintenance, and for her life-time only, and that on her death it should be divided amongst the grandsons of Ganga Ram per stirpes. They accordingly sue to recover possession of two-thirds of the share recorded in the name of Musammat Udni. The Court of first instance dismissed the suit, holding that the fathers of the plaintiffs had separated from their father Ganga Ram during his life-time, and that the defendants had acquired title by adverse possession. On appeal the learned Subordinate Judge differed from these findings, and coming to the conclusion that after the deatli of Ganga Ram a partition took place between his sons, under which the one-fourth share in question was assigned to Musammat Udni, held that she had only a life interest in the property, which, on her death, reverted to the heirs of Ganga Ram, and gave plaintiffs the decree they asked for. The defendants appealed to this Court. The main plea urged on their behalf was that the share which fell to Musammat Udni was her stridhan, and as such, the plaintiffs, sons of her stepsons, had no right to a share in it. The appeal was heard by a Judge of this Court sitting singly, who sustained the defendants’ plea, set aside the decree of the Subordinate Judge, and restored that of the Court of first instance. From that decision this appeal has been filed under the Letters Patent.
2. The whole argument has turned on the question whether, under, the Hindu Law applicable to these Provinces, the share which fell to Musammat Udni-in the partition which took place after Ganga Ram’s death, became thereby her stridhan. It was admitted that if it was stridhan the plaintiffs were out of Court.
3. The question thus raised for our decision is one of considerable difficulty. We do not have for our guidance any decision of tin’s Court, or of the Privy Council on the point. The case cited in the judgment of our brother Blair now under appeal, i.e. Bilaso v. Dina Nath (1880) I.L.R. 3 All. 88 decides that a Hindu widow who is entitled to an equal share with sons upon partition can claim that share not only against the sons, but also as against an auction-purchaser who has acquired the rights and interests of one of the sons before the partition. But it throws no light whatever on the question whether the share obtained by the widow becomes her stridhan.
4. In the case Bhagwandeen Doobey v. Myna Baee (1897) 11 Moo. I.A. 487 the question which we have to decide was left an open one by their Lordships of the Privy Council. At page 514 of the judgment they say: “The case is wholly distinguishable from those in which a widow, having a right to an ascertained share upon a partition with co-parceners, who have an absolute interest in their shares, is put by them in possession. In such a case, it may be a question whether her interest does not become absolute; though in a case coming from Lower Bengal the contrary was decided by this Committee on an appeal from the Supreme Court of Calcutta.”
5. For the respondents reliance is placed on the well-known passage in the Mitakshara (Chap. II, Section XI, § 2), where the author’ Vijnaneshvara includes amongst property which forms a woman’s stridhan, “property which she may have acquired by inheritance, purchase, partition, seizure or finding.” Their Lordships of the Privy Council have in the case of Mussumat Thakoor Deyhee v. Rai Baluk Ram (1866) 11 Moo. I.A. 139 Bhugwandeen Doobey v. Myna Baee (1867) 11 Moo. I.A. 487 Chotay Lall v. Chunno Lal (1878) L.R. 6 I.A. 15 and Muttu Vaduganadha Tevar v. Dord Singha Tevar (1881) I.L.R. 3 Mad. 290 held, notwithstanding the fact that inheritance is mentioned by the author of the Mitakshara as one of the sources of a woman’s separate property, that property which a woman inherits from a male is not in her hands stridhan transmissible to her own heirs. In the last of the cases cited above, their Lordships say, at p. 301 of their judgment: “It is not (necessary now to state in any detail how impossible it is, whether with regard to other commentators or to other passages in the Mitakshara itself, to construe this passage as conferring upon a women taking by inheritance from a male a stridhan estate transmissible to her own heirs.”
6. For the appellants reliance is placed upon a passage in the judgment of Phear, J., in the case Mohabeer Pershad v. Ramyad Singh (1873) 20 W.R. 192; at p. 195 where he says: “After the consideration which I have been able to give to the authorities which were cited on both sides, I have arrived at the opinion that the widow is upon the division which has been directed to be made, entitled to her share, either by way of maintenance or as a portion of the inheritance.” It is argued with much show of reason that if it is by way of maintenance that a widow gets a share upon partition, that share should go back to her husband’s heirs upon her death; on the other hand, if she gets it by way of inheritance the share will not, on the rulings of the Privy Council just referred to, descend to her heirs.
7. The next case relied on by the appellants is Lallijeet Singh v. Raj Coomar Singh (1873) 20 W.R. 336 where it was held that under the Mitakshara Law a father may during his life-time partition the joint family property, and that if he does so, he must allot a share to his wife for her maintenance in addition to the share which he takes himself. With reference to this case we would call attention to a passage in the Mitakshara, Chap. I, Section 6, §§ 1 and 2 which, in our opinion, has a material bearing on the question we have to decide in this case. Vijnaneshvara is there considering the question “How shall a share be allotted to a son born subsequently to a partition of the estate? “Such a son, he says, obtains, after the demise of his parents, both their portions. Then he adds these important words,” (he obtains) his mother’s portion, however, only if there be no daughter, ‘for it is declared that daughters share the residue of their mother’s property after payment of her debts. ” Here we have the author of the Mitakshara applying the special rules governing the descent of stridhan, to the share which a woman gets on partition during her husband’s lifetime, showing clearly that he considers a share so acquired to be her stridhan.
8. It is admitted that whilst a family subject to the law of the Mitakshara remains joint, a woman has no right to any share of the family estate; all that she can claim is maintenance. But when a partition takes place in such a family, a mother is entitled to a share equal to a son’s share. In the case Sheodyal Tewaree v. Judoo Nath Tewaree (1868) 9 W.R. 61 Mitter, J., remarked: “There is no doubt that the share that is given to a Hindu mother at the time of partition is given to her for no other purpose than as a provision for her maintenance.”
9. If it were for no other purpose, one might suppose that when a partition takes place a woman would get only a share large enough for her maintenance.
10. But the author of the Mitakshara emphatically pronounces this idea to be “wrong.” Vide II, I, 32.
11. There is nothing in the texts to indicate that she gets the usufruct only of the share; she gets the share itself.
12. For the appellants, reference is also made to the case of Hemangini Dasi v. Kedar Nath Kundu Chowdhry (1889) I.L.R. 16 I.L.R. Calc. 758.
13. In that case, at p. 765 of the judgment, their Lordships of the Privy Council say: “When the Hindu law provides that, a share shall be allotted to a woman on a partition, she takes it in lieu of or by way of a provision for the maintenance for which the partitioned estate is already bound.” This, it may be mentioned, was a case under the Dayabhaga law.
14. The case of Beni Parshad v. Puran Chand (1895) I.L.R. 23 Calc. 758 also relied upon by the appellants, was a case under the Mitakshara law. At p. 279 of the judgment) the learned Judges (Prinsep and Ghose, JJ.), say: “The mother was entitled to hold her one-fifth share in lieu of maintenance only, and had therefore no absolute power of disposal, though, no doubt, the Mitakshara describes such property (i.e. property acquired by partition) as woman’s property.” They refer to the cases already cited from the Weekly-Reporter, to Mayne’s Hindu Law, paras. 614 to 617, and Viramitrodaya (Golap Chunder Sarkar’s translation), pp. 224, 245. In the argument before us, reference was also made to the law of the Hindu widow by Trailokyanath Mitra (Tagore Law Lectures, 1879).
15. At p. 467 of that work, it is stated that the share which a widow gets on partition, namely, a share equal to that of each of her sons, she obtains in lieu of her maintenance. The author goes on to explain the reason of the widow getting a share. He says: “After partition she loses her accustomed position, she cannot attach herself to any one of the several families created by partition, and it is improper that she should be floating about between one family and another for the purpose of obtaining a precarious maintenance. This the ancient sages could not tolerate; and they accordingly ensured her maintenance, in case of a partition, by making her the recipient of a share, which, inalienable by her during her life-time, would on her death devolve on her surviving heirs.” If the author uses the words “her surviving heirs” advisedly, this passage would tell against the case set up by the appellants.
16. The appellants have also in their favour the authority of Sir Francis Macnaghten. At p. 43 of his “Considerations on the Hindu Law as it is administered in Bengal” (1824), he says: “I believe it may now be laid down as the law that mothers who take a share upon partition, take an estate for life only, and with respect to dominion over the property, stand upon the same footing with widows who succeed to their husband’s rights.” He admits, however, that a distinction may possibly be made in a case in which all the sons had agreed to divide, remarking that in that case the share which the mother gets might be said to be in the nature of a gift, because they would all have concurred in the act by which their mother became entitled to a share of the estate.
17. The next authority referred to in the argument was Gooroo-dass Banerjee’s Hindu Law of Marriage and Stridhana (Tagore Law Lecture, 1878, 2nd edn., 1896. At page 305 the author deals with the question whether the share, which a woman obtains on partition, becomes her stridhan. He says: “The Mitakshara and the Mayukha answer this question clearly in the affirmative.” He points out that Jagannatha gives conflicting answers, refers to the passage quoted above from Sir F. Macnaghten, and sets forth the views entertained by the Bengal, Mithila and Dravida school. In his summary at p. 310 he says: “The share which a woman obtains on partition is her stridhan according to the Benares and Maharastra schools, but it does not rank as stridhana according to the law of Bengal.” The law of Mithila and that of Dravida are not very clear on the point; but there is reason for thinking that they do not differ from the law of Bengal. At p. 330 he says: “The Hindu Law is not very clear regarding the rights of a woman over the shares obtained by her on partition,” and remarks that the more correct view appears to be that a woman can have no greater rights over it than over the property of her husband which devolves on her by inheritance.
18. Our learned colleague, whose decision is under appeal, refers to Mayne’s Work on Hindu Law as supporting the view that he takes. We doubt whether this is the case, for at p. 816 of the last edition of his work, that learned author says: “Upon analogy there can be no reason why a woman who takes part of a property on partition between her sons should have a, larger interest than if she had taken the whole in the absence of her sons.”
19. The Viromitrodaya which has been referred to by the Privy Council as properly receivable as an exposition of what may-have been left doubtful by the Mitakshara, and declaratory of the law of the Benares school, has nothing clearly bearing on the question at issue, but it backs up the author of the Mitakshara in the extended meaning he gives to the term stridhan, remarking that the term sixfold” used by Manu in connexion with stridhan “is intended, not as a restriction of a greater number, but as a denial of a less,” and also supports him in saying that the word stridhan has been used by Manu in its ordinary significance as denoting property whereof a woman is the owner, and not in any technical sense (vide Chap. V., parts 1 and 2).
20. According to Sir W. Macnaghten (Principles of Hindu Law, 3rd edn., p. 87), the succession to stridhan “varies according to the condition of the woman and the means by which she became possessed of the property.”
21. The Mitakshara, however, gives but one general rule for the descent of stridhan, the only exception being in the case of the sulka or present given on marriage–vide Chap. II, Section XI, 8 and 30.
22. The distinction drawn by Sir W. Macnaghten between what he calls woman’s property and what he styles her peculium, has been shown by Messrs. West and Buhler (Hindu Law, p. 146 et seq.), Jolly (Hindu Law, p. 244 et seq.), and Banerjee (Hindu Law of Marriage and Stridhan, 2nd edn., p. 276) not to have been present to the mind of the author of the Mitakshara.
23. The last case relied upon by the appellants is Ganpat Rao v. Ram Chandar (1888) I.L.R. 11 All. 296. In that case there were two brothers forming a joint Hindu family. One died, leaving a son Ram Chandar; the other died, leaving a widow Mnsammat Lachhmi Bai. No partition had taken place, and it is clear that Lachhmi Bai was only entitled to maintenance. A deed was executed, whereby Ram Chandar having received from Lachhmi Bai a sum of money as representing the value of his half share of a house, declared her to be in sole proprietary possession of the whole of the house. She executed a deed of gift in respect of the house in favour of her brother’s sons, the validity of which was impugned after her death. This Court held that under the circumstances the widow had no more than a life estate. We are of opinion that this case has no bearing on the question we have to decide.
24. The case then stands thus. The question we have to decide is pronounced by the Privy Council to be an open one, and there is, so far as we can ascertain, no case law in these Provinces bearing upon the point at issue.
25. In the conflict which undoubtedly exists amongst Hindu authorities, we consider ourselves bound to follow the Mitakshara, the paramount authority in these Provinces. We are of opinion that according to the law as laid down in Chapter II, Section XI of that work, property acquired by a woman by partition is her stridhan, and follows the rule of descent laid down for such property. That rule of descent is applied by the author of the Mitakshara himself to the case of a share acquired by a woman by partition during her husband’s life time–vide the passage cited above from Mitakshara (I., VI., 2), the importance of which seems to have been generally overlooked. We see no reason for thinking that Vijnaneshvara would have applied any different rule in the case of a share acquired by a woman by partition taking place after her husband’s death.
26. For these reasons we arrive at the conclusion that the decision of our brother Blair was right, and we dismiss this appeal with costs.
Banerji, J.
27. The question raised in this appeal, namely, whether the share, which a Hindu mother, governed by the Mitakshara Law, gets upon a partition between the sons, is her stridhan, which devolves on her death on her own heirs, and not on the heirs of her husband, is by no means free from difficulty. Whilst the author of the Mitakshara in Chapter II, Section XI, § 2 includes such property among what constitutes a woman’s stridhan, there are other considerations from which it may be inferred that she gets such share as a provision for her maintenance, and that it cannot in any case rank higher than the interest which a widow acquires in her husband’s estate by right of inheritance. There is, however, no express text in the Mitakshara, which declares that the share thus obtained by the mother is obtained by her for her maintenance. In this respect the Mitakshara differs from the Smriti Chandrika (see Chap. IV) which is followed in the Dravida country, where it conflicts with the Mitakshara. The latter, however, is the paramount authority in the Benares school, and its express texts must, in the absence of anything to the contrary, be followed in these Provinces. For the purpose of determining whether the author of the Mitakshara intended that property obtained by a woman upon partition between her sons should be deemed to be her stridhan in the sense of being her separate property, the best test is that which was applied by their Lordships of the Privy Council in respect of property inherited by a woman from a male in the well-known case of Bhugwandeen Doobey v. Myna Baee (1867) 11 Moo. I.A. 487 and the other cases to which my learned colleague has referred. It is clear, and is indeed conceded, that the share which a mother obtains upon partition between her sons partakes of the same nature as that obtained by a wife under a partition made by the father in his lifetime. As regards the share last mentioned, the rule of descent according to the Mitakshara is the same as in the case of stridhan. In Chap. I, Section VI, § 2, it is laid down that a son born after partition “obtains after the demise of his parents both their portions his mother’s portion, however, only if there be no daughter; for it is declared that ‘daughters share the residue of the mother’s property after payment of her debts.'” The preference of the daughter to the son as the successor to the mother’s share shows that whatever may have been the reason for the allotment of the share to the mother, Vijnaneshvara declared such share to be the separate property of the mother, and intended that it should devolve in the same way as separate property of any other description. Unlike the case of property obtained by a woman by inheritance to a male, there is in this respect no conflict between the different texts of the Mitakshara. The safest course, therefore, seems to be to follow the text of the Mitakshara, and adopt the view which has been held by Mr. Justice Gooroodass Banerjee in his work on the Hindu Law of Marriage and Stridhan. The question is, however, beset with difficulties, and I must say that, although I do not feel myself justified in coming to a different conclusion from that at which my brother Aikman has arrived, my mind is not free from doubt. I agree in dismissing the appeal with costs.
