Musst. Dal Koer v. Musst. Panbas Koer

This appeal arises out of a suit brought by the Plaintiff-Appellant, the junior widow of the late Munshi Banshidhar, against her co-widow, the Defendant-Respondent, for partition of her husband's estate to which she alleges that she and her co-widow have succeeded by inheritance. The Plaintiff further alleges in her plaint that her co-widow, the Defendant, has obtained Letters of Administration for administering the estate of her husband; and that though asked by her to partition the property, she has refused to come to any partition.

The defence so far as it is necessary to be considered for the purposes of this appeal, was, that the present suit in the manner in which it had been instituted could not he proceeded with; that the Defendant having obtained Letters of Administration, a suit for partition could not be entertained that having regard to the fact that the Plaintiff was a childless widow, whereas the Defendant had daughters and grandsons by one of them, the Plaintiff was not entitled to enforce partition as against her; that the moveables claimed were far in excess of those really belonging to the estate of Munshi Banshidhar and that there were debts which had to be paid off and charges on the estate which had to be met.

Upon these pleadings several issues were framed of which we need only notice the 3rd, 5th, 6th and 7th, which run thus:—“(3) Whether the suit is maintainable in its present form?” (5) “Whether the suit for partition can lie under the circumstances stated in the plaint? (6) Whether the suit for partition can lie against the Defendant, who has obtained Letters of Administration? and (7) Whether Munshi Banshidhar left Rs. 2,200 in cash, ten (10) gold mohurs and other properties mentioned in the plaint, which are denied by the Defendant?”

The Court below has decided all these four issues against the Plaintiff, and has dismissed her suit; and hence this appeal by the Plaintiff.

The contentions urged on behalf of the Plaintiff-Appellant are, first, that as one of two widows who have inherited the estate of their deceased husband the Plaintiff is entitled to enforce partition, and, second, that even if the Plaintiff be held not to have an absolute and unqualified right to enforce partition, having regard to the circumstances of this case, she is entitled to a decree for separate possession of her share of her husband's estate.

On the other hand, it is argued for the Defendant-Respondent, that the Plaintiff who has only a limited estate of a Hindu widow, is not entitled to enforce partition as a matter of right, and that the circumstances of the case are not such as to render it either necessary or desirable that she should have separate possession, there being debts due from the estate for the payment of which the Defendant under the Letters of Administration obtained by her is the proper person to make arrangements, and there being other demands on the estate such as charges for maintenance for which the Defendant has to make sufficient provision. It is further contended on behalf of the Respondent that a suit for administration and not one for partition was the proper form in which the Plaintiff ought to have brought her suit; and that having regard to the value of the property in dispute which is small, the partition and separate management of it will prove prejudicial to it.

Upon these contentions the questions that arise for determination are,—first, whether the suit for partition is maintainable before the estate has been completely administered by the Defendant who has obtained Letters of Administration? Second, whether the Plaintiff as one of the widows of the late Munshi Banshidhar has an unqualified right to demand partition of her husband's estate as against her co-widow, the Defendant? Third, if she has not such as a right, are the circumstances of the case such as should entitle her to separate possession of her share of her husband's estate? and, fourth, in what manner should the partition be effected, if there is to be any partition, and what provision should be made for the payment of debts due from the estate?

We are of opinion that the first point should be determined in favour of the Plaintiff-Appellant, and that the fact of the Defendant having obtained Letters of Administration and not having completely administered the estate yet, can be no bar to the maintenance of the present suit.

The learned Judges of this Court in dismissing the appeal of the present Plaintiff against the order of the District Judge refusing to revoke Letters of Administration granted to the Defendant, observed towards the conclusion of their judgment: “If the senior widow collects the debts of the deceased and takes possession of the estate, this will not deprive the junior widow of her rights. She can apply to the District Judge for enforcement of her rights or else can bring a regular suit for partition.”

The learned Subordinate Judge in the Court below regarded these remarks in the judgment of this Court as being mere suggestions which could not have any effect as against the contention of the Defendant that the Letters of Administration obtained by her were a bar to the maintenance of this suit.

We are not prepared to accept his view as correct. But even if the learned Judges had not said anything on the point, we should have felt no difficulty in holding that the Letters of Administration were no bar to the present suit. It is true there are debts due from the estate to be partitioned, but that is no reason why there should be no partition, if the Plaintiff is entitled to have partition, or separate possession of her share of the estate of her deceased husband. The parties are governed by the Mitakshara law, and one fundamental rule of partition under that law is that of equal division of the effects and the debts appertaining to the estate to be divided. See Mitakshara, Chap. I, sec. 3, para. (1) and also para. (8). See also Maynes' Hindu Law and Usage, para. 470 of the 6th edition.

Upon the second point the learned vakil for the Plaintiff-Appellant contends that as one of the two widows of the late Munshi Banshidhar, the Plaintiff is entitled to claim partition of her share as her unqualified right; and in support of this contention he relies upon a passage of the Mitakshara which is left out in Colebrooke's translation, but which has been referred to in the Tanjore case(1) and which should have formed part of the 5th paragraph of sec. 1 of Chap. II in Colebrooke's translation, and which runs thus:—“Singular number because the class is denoted. Hence if there be several, whether of the same or different castes, they divide and take the property according to their shares” and the passage is referred to in later text-books of which we may mention one, namely, the Work on Hindu Law by Babu Golap Chandra Sircar Sastri (see p. 309). Reliance is also placed upon the case of Sundar v. Parbati(2) in support of the same contention.

On the other hand, it is argued for the Respondent that though the passage of the Mitakshara relied upon by the learned vakil for the Appellant may lend some support to the Appellant's contention, that passage has been explained in the Tanjore case thus:—“The division which is there spoken of must be understood, we think, to refer only to the distributive enjoyment of the benefits of the joint property, and no doubt two or more widows might by an agreement inter se, not prejudicial to the rights of the next heir in succession, provide for such enjoyment by an apportionment of the property.” The same view, it is argued, is taken by the Privy Council in the case of Gajapathi Nilamani v. Gajapathi Radhamoni(3). And with reference to the later case, namely, that of Sundar v. Parbati, it is urged that no question of the right of one of two widows to enforce partition against her co-widow arose before their Lordships, the case having been decided upon the footing of the possessory right which the widows had, and not upon the footing of their rights as Hindu widows under the law of inheritance.

Upon a consideration of the authorities bearing on the point, the conclusion we come to is that the Plaintiff has not the unqualified right to claim partition that is advanced on her behalf.

One necessary qualification is imposed upon her right by the rule of law, and we must now take it to be the settled law of the Mitakshara school as well as of the Dyabhaga school, that the widow has only a limited interest in the estate she inherits from her deceased husband. See Collector of Musalipatam v. Cavalyvencata Narainapah(4) and Bhugwandeen Doobey v. Myna Baee(5). If the estate of a Hindu widow is limited and if upon the death of one of several widows who jointly succeed to their husband's estate, her interest must go to the surviving widow, her right to enforce partition of the estate must necessarily be a qualified right. In the first place such partition cannot affect the rights of her co-widow to succeed to the estate after her; nor can it affect the rights of any of the other reversionary heirs of her husband. And in the second place, if that is so, the partition that is to be effected as between co-widows, must be so made as not to effect any permanent change in the property to be divided such as might affect the interests of the reversionary heirs.

As for the passage of the Mitakshara that is relied upon in support of the Appellant's contention, it must be borne in mind, that if the Mitakshara imposes no restriction upon the widow's right to claim partition, neither does it impose any restriction upon the widow's right to alienate her husband's property which has passed to her by inheritance; and if it must be taken to be the settled law now that under the Mitakshara law just as well as under the Dyabhaga, the widow's interest in her husband's estate is a qualified one, we must also understand the passage of the Mitakshara to which reference is made in a qualified sense, as the Madras High Court pointed out in the Tanjore case. The view we take is in accordance with that taken by the Privy Council in the case of Gajapathi Nilmani v. Gajapathi Radhamani, where their Lordships say: “Their Lordships, guarding themselves against being supposed to affirm by this order that either widow has power to dispose-of one-fourth of the estate allotted to her or that they have any right to a partition in the proper sense of the term, are not disposed to vary the form of the order under which one-fourth of the profits of the estate will go to each widow during their joint lives, their respective rights by survivorship and otherwise remaining unaffected.”

As for the case of Sundar v. Parbati, there, as has been pointed out by the learned vakil for the Respondent, no question arose as to the right of a Hindu widow to claim partition as against her co-widow. The case was disposed of on the footing of the widows having acquired a right by possession irrespective of their right by inheritance to the estate of their deceased husband.

The extreme contention of the Plaintiff-Appellant must therefore fail.

Turning now to the third question raised for determination we are of opinion that question should be answered in favour of the Appellant. The circumstances of the case are such as to make it clear that the relief of separate possession is, to use the words of the judgment in the Tanjore case which has been approved by the Privy Council, “the only proper and effectual mode of securing the enjoyment of her distinct right to an equal share of the benefits of the estate to the Plaintiff.” For the parties have been quarrelling for a long time as to their respective rights in the estate of their deceased husband. If the Plaintiff has overstated her claim in regard to the moveables, the Defendant also has set up untenable objections against the Plaintiff's right; and if the Plaintiff is left to her remedy by a suit for her share of the income of the property in the hands of her co-widow, the result will be a multiplicity of suits which must prove harassing to the Plaintiff. Nor is there anything in the nature of the property which stands in the way of partition by separate possession being awarded in favour of the Plaintiff The properties consist of distinct items of immoveable property, separate possession one-half of which by the Plaintiff cannot prove detrimental to the interests of future heirs, when it is settled that she has no power of alienation.

As for the moveables, according to the finding of the Court below which is not impugned before us, they are not anything in excess of what the Defendant has admitted, and are therefore very small in quantity and of very inconsiderable value. No grave loss, therefore, can be apprehended from the Plaintiff beings placed in possession of her share of the moveables.

As for the argument used in the judgment of the lower Court against the Plaintiff's contention, that she is a childless-widow, whereas her co-widow has daughters and daughters' sons who would be entitled to the estate in future and that consequently it is desirable that the estate should remain in the hands of the Defendant who will be interested in preserving and improving it for the benefit of her descendants, we do not think that argument has much force. If the senior widow, the Defendant, were to die, the whole of the estate must pass to the possession of the Plaintiff. That is the law; and if that is the law, it is no good reason against the Plaintiff being allowed possession of her share, to say that she is a childless widow and is not interested in improving the estate in the same way that the Defendant is.

We are therefore of opinion that the Plaintiff is entitled to partition of her husband's estate and to separate possession of her one-half share thereof.

The next and the last question is, how is this partition to be effected, and what provision is to be made for the debts due from the estate.

As we have pointed out above partition can take place only of what is left of the estate after payment of debts, and if it is not possible to pay off all the debts at once, provision must be made for the payment of the debts out of the incomes allotted to the co-owners between whom partition is effected.

In the present case it is admitted that there is a Government Promissory Note of the nominal value of one thousand rupees belonging to the estate. There are debts due from the estate, but the admitted amount is only that covered by two decrees of the Calcutta Small Cause Court, and is rupees three hundred more or less.

The learned vakil for the Respondent suggests that the Government Promissory Note may be allowed to be sold by the Defendant in her right as administratrix and the Calcutta decree may be paid off out of the proceeds: To that the learned vakil for the Plaintiff has no objection provided the balance is deposited in Court to be made available for the purposes of partition.

We accordingly direct that the Defendant be permitted to arrange with the creditors of her husband's estate who had obtained these two decrees, and after having arranged with them, to pay them off out of the sale proceeds of the Government Promissory Note, and to deposit the balance in the Court below. The Defendant must render an account of the income and expenditure of the estate during the time of her administration, that is, from the date she obtained Letters of Administration; and the Commissioner for partition is to submit a scheme for the payment of the debts, if any, out of the cash in hand, and in the event of that proving insufficient to submit such scheme as he thinks fit for payment of the debts out of the income. The balance of the cash in hand, if any, and the moveables as found by the Court below to be in existence, should be equally divided between the parties.

The immoveable properties are to be divided in a manner such that the Plaintiff and the Defendant may have equal shares in the income, and so as also to leave the different items of property entire so far as that may be possible. Provision should also be made for the annual repairs of the houses belonging to the estate which should be left entire, the two widows being competent to reside in them if they so choose, and each being liable equally to contribute to the expenses of the repairs.

The result then is that the decree of the Court below dismissing the Plaintiff's suit must be set aside, and the case sent back to that Court in order that it may effect the partition of the property in accordance with the directions contained in this judgment.

The Rule No. 2886 of 1903 is disposed of by the directions we have given above and will be discharged.

The Plaintiff-Appellant is to recover from the Defendant-Respondent one hundred rupees in each Court as costs of this litigation.

The costs of partition is to come out of the estate.

S.C.S

Appeal allowed.