1. This is an appeal from a judgment of the District Judge of Darbhanga in a suit for partition brought by one of the members of a joint Hindu family governed by the Mithila School of Law. The family consisted of Krishna Lal Jha, his mother Giriia Ojhain, his two wives Jaimangla Ojhain and Aina Ojhain and his son Nandeshwar Jha by his first wife Taimangla. The suit was instituted on 11th August, 1913 by the son Nandeshwar Jha against his father and the other members of the family as defendants. At that time the plaintiff was a minor and in his plaint made certain charges against his father of mismanagement of the family property and preferential treatment of his stepm the to the detriment of himself and his mother Jaimangla. Since the institution of the suit and before the date of the judgment appealed from the plaintiff attained Ills majority and those charges then ceased to be material and were not dealt with in the judgment. The plaintiff claimed an eight-annas share in the family property. The defendants, the father, step-mother and grandmother of the plaintiff opposed the partition and each claimed in the event of partition one-fifth part as their respective shares. The defendant, mother of the plaintiff supported the partition and claimed one-fourth part as her share. The plaintiff's father also claimed that several of the properties set out in the schedule were his self acquired property and not part of the family estate. Judgment was delivered in the Court below on 4th August, 1915. The learned District Judge decided that each of the members of the family including the plaintiff's grandmother Girija was entitled to one-fifth share and that the properties claimed by Krishna Lal Jha the plaintiff's father were not his separate property but formed part of the family estate. From this decision the defendant Krishna Lal Jha presented an appeal on 2nd September, 1915, on the ground that the properties claimed by him were wrongly found to have been joint family property. The plaintiff entered a cross appeal on 10th November, 1915, on the ground that his mother and stepmother were wrongly awarded a share and that his grandmother should have been allowed maintenance only and further that proper directions were not given either for ascertaining the properties which might be ascertained to be liable to partition before passing the final decree or for taking accounts.
2. Since the date of the judgment now under appeal two events have happened which complicate the issues between the parties and the final adjustment of their rights. On 21st November 1915 a son was born to Aina Ojhain the plaintiff's step-mother and on 5th August, 1916 Girija Ojhain his grand-mother died. It was agreed between the parties that these events should be taken into consideration by this Court and that the legal consequences resulting therefrom, in so far as they affect the shares which the parties are now entitled to, should be determined and given effect to in our judgment. The points argued by the defendant were (1) that on the evidence the Judge wrongly decided that the properties claimed by him in schedule kha of his written statement were joint family property; (2) that he was entitled to succeed by inheritance to his dead mother's one-fifth share apportioned to her by the judgment, on the ground that it devolved on him as her stridhan property to which he was sole heir or as her deceased husband's property of which he was also heir; (3) that the after-born son of his wife Aina Ojhain was entitled to a share, he having been conceived before the partition took place though born afterwards.
3. The plaintiff contended (1) that his grandmother was not entitled to a share at all according to the Mithila Law on a partition between her son and grandson and that in any case the grandmother's share, if any, was not her stridhan but family property allotted to her by way of maintenance and after her death went back to the estate and was divisible in equal shares amongst the coparcener; (2) that the after-born son was not entitled to a share, on the ground that the partition must be regarded as taking place not later than 11th August, 1913 when the plaint was filed and the son was not born until more than two years later. The point that his mother and step-mother were not entitled to share under the Mithila Law was not pressed. As to the question of fact whether the disputed property belonged to the defendant, we have been referred to the evidence and the learned Judge's reasons for the findings at which he arrived and we have no hesitation in coming to the conclusion that those findings were amply justified. There were no separate accounts of the alleged self acquired property produced, nor is there any reliable evidence to show how the defendant could have himself acquired the funds necessary to purchase properties worth nearly Rs. 24,000 except by recourse to the ancestral property. On the other hand, there is evidence from which the inference is almost irresistible that the family funds were employed in paying for the properties claimed. This part of the appeal must, in our opinion, fail.
4. The next question is whether Girija Ojhain the grandmother of the plaintiff and mother of the defendant Krishna Lal Jha was entitled to a share on partition. Upon this point divergent views have been expressed by the High Courts of Calcutta and Allahabad. The decisions of the Calcutta High Court which until recently exercised jurisdiction in this Province, although they do not prevent this Court from exercising an independent judgment, are entitled to the greatest respect and should not be departed from without cogent reason. In Badri Roy v. Bhagwat Ndrain Dobey(1) it was decided by Mitter and Maclean, JJ., that in a partition between a father and son at the instance of the son both the mother of the latter and his paternal grandmother were entitled to share equally with him and his father. That was a case of a Mitakshara family and the Mitakshara together with the Vivada Ratnakara and the Vivada Chintamani is the leading authority recognized by the Mithila School. In the case of Sheo Narain v. Janki Parshad(2) a Full Bench of the Allahabad/High Court on the other hand held that in a partition between a father and his sons the father's mother is not entitled to a share according to the Benares School of the Mitakshara Law. The latter case appears to be based mainly upon the consideration that whilst the author of the Mitakshara expressly recognises the right of the wife of the father to share equally with the sons when distribution is made during the lifetime of the father no mention is made of the father's mother, although after the father's death, if the sons separate, the mother is mentioned as entitled to an equal share with the sons. The passage relied on is found in S. 8 of the Mitakshara and reads as follows in Colebrooke's translation: “When a distribution is made during the life of the father the participation of his wives, equally with his sons, has been directed.” (If he makes the allotments equal his wives must be rendered partakers of the portions). The author now proceeds to declare their equal participation when the separation takes place after the demise of the father: “Of heirs dividing after the death of the father let the mother also take an equal share.” It seems fairly clear that Vijnaneswara in the passage just referred to is considering the claim of the same person, first, as a wife of the head of a joint family when a partition takes place and secondly, as the widow of the late head of the family when the sons themselves are seeking separation, and in either case she is awarded a share equal to that of a son. In the case now under appeal if the defendant Krishna Lal Jha had a brother alive and unseparated from him, it would appear that on a partition taking place between them their mother would be entitled to share with them the ancestral property, they being “the heirs dividing after the death of the father,” in which case the Mitakshara provides “let the mother also take an equal share.” The fact that either or each of the brothers had issue living would not, we apprehend, affect the rights of the mother although in such a case she might with equal accuracy be described as a grandmother concerning whom the Mitakshara is silent. How then ought her claim to be considered when the partition takes place, not between her sons as heirs of her deceased husband, but between her only son who is undoubtedly an heir and her grandson? On referring to the text of Yajnawalkaya if also appears that where the father in his lifetime makes an equal distribution among his sons, his wives to whom no stridhan has been allotted take like portions and where after his death the sons separate their mother takes a share equal to that of a son. Separation between a father and an only son does not appear to be contemplated by Yajnawalkaya nor is it in terms referred to in the text of the Mitakshara.
5. It is not improbable that at the time when the Mitakshara was written a partition between a father and an only son at the instance of the latter was seldom if ever resorted to. However this may be, the propriety of such a proceeding could hardly be challenged at the present day. It is not easy to see on what principle of justice or equity the mother of an only son on a partition between him and his heirs should be excluded, when if two or more of her sons as coparcener were dividing the family property she would be entitled to share, equally with them. It was argued as a reason for leaving her unprovided that her maintenance should properly fall after partition as a charge upon her son's share. This argument appears to us to have little to recommend it. Before partition he would have control of the whole of the family property from which to provide for his mother's maintenance. After partition that control would cease and his resources would be limited in proportion to the number of shares with whom he divided. It could be urged with equal force that on partition between sons after the death of a father the mother should have no portion as her maintenance should fall on the eldest son or any other, but in such a case she is in fact allotted a full share equal to that of her sons. But as the Mitakshara makes no express provision for the case now under consideration, we should have some difficulty in coming to a decision not expressly authorised by the great commentator if the Mitakshara were the only authority recognized by the Mithiia School. The Vivada Katnakara and the Vivada Chintamani, which are authorities of at least equal weight amongst the followers of the Mithiia School, both quote a text of Vyasa which says: “But the sonless wives of the father are pronounced equal shares and all grandmothers also are pronounced equal to mother.” The above question occurs in Chap. IV-31 of Golapchandra Sarkar's translation of the Vivada Ratnakara. In Tagore's translation of the Vivada Chaintamani the passage is rendered: “Even childless wives of the father are pronounced equal shares and so are all the paternal grandmothers who are declared equal to mothers.” It has been argued before us that the quotation from Vyasa should be treated as applying only to cases of partition amongst brothers as in the Vivada Ratnakara it occurs in a Chapter dealing with partition among brothers and in Vivada Chintamani it forms one of the paragraphs under the heading “grandsons of different fathers.” We can see no reason for so restricting its application and we are supported in this view by the decision of the Calcutta High Court in the case of Badri Roy v. Bhugwat Narain Dobey already referred to. If we are right in supposing that in Vijnaneswsra's day a separation between a father and an only son was not an established practice, this may account for the fact that no mention is made in the Mitakshara of the father's mother in such a case. It would not, however, account for the case of a separated brother as the head of a new line of descent partitioning with his sons in the lifetime of his mother. But such a case ex hypothesi supposes an earlier separation between the present head of the family and his brothers, in which case his mother would have already been provided for by her share in the earlier partition. There is no evidence that the grandmother had been so provided for in the present case. This does not exhaust all possible cases where the question could arise, but other cases would necessarily be of rare occurrence. In any case the claim of the grandmother is distinctly recognised in two out of three of the leading authorities governing the Mithila School and although we have great hesitation in view of the Full Bench decision of the Allahabad High Court in arriving at a conclusion in lavour of the grandmother's claim, we think that such a claim should be recognised amongst those governed by Mithila Law.
6. The next question for consideration is whether the share allotted to the plaintiffs grandmother on partition is to be regarded as her stridhan anil if not, how it should now be dealt with. If it constitutes her stridhan, there being no daughter or other nearer heir in the line of inheritance applicable to such property, her son the defendant Krishna Lal Jha would succeed, a Debt Mangal Prosad Singh v. Mahadeo Prasad Singh(3) it was decided by the Judicial Committee that the share which the mother in a joint Hindu family governed by the Mitakshara Law obtains on partition of the family property is not her stridhan and on her death does not devolve upon her strithan heirs but goes back to the estate from which it came. It is sufficient to say that in our opinion that case is not distinguishable from the present.
7. A further point was taken but not pressed that the defendant Krishna Lal Jha was entitled to the exclusion of the other co-sharers, on the ground that it reverted to him as the heir of her deceased husband and that a partition having been effected before the mother's death the other co-sharers ceased to have any interest in the property. We think the proper view is that the mother's share is taken in lieu of maintenance and on her death reverts to the general estate and does not cease to be ancestral property. Moreover in the present case the partition has not been finally carried out, the decree being a preliminary one, and the mother had no separate enjoyment and no actual allotment had been made at the time of her death and if the property has not lost its character of ancestral property, it would remain subject to partition in the present proceedings. The case of Sheo Dyal Tewaree v. Judoonath Tewaree(4) would appear to support this view. In that case a partition took place between several co-sharers including an uncle and nephew and the mother of the former. The last named died pending an appeal in the partition suit and after the preliminary decree a claim was made to her share by a person alleging herself to be her devisee. Mitter, J., in delivering judgment said:— “It is quite clear that the share which ought to have been allowed to Golaba (the mother) was merged in the general estate…But the mother or grandmother (as the case may be) can never be recognised as the owner of such a share until the division has been actually made. She has no pre-existing vested right in the estate except a right of maintenance.” In our opinion the share of the defendant's mother Girija Ojhain should be divided amongst the cosharers as part of the ancestral property.
8. The next point is whether the after-born son of Aina Ojhain is entitled to a share as against the plaintiff. This depends upon whether the date of the preliminary decree or the date of the institution of the suit must be taken as the time when the plaintiff's interest became severed from that of the other members of the family, for it is conceded that if the after-born son was conceived before the partition he is entitled under the Mitakshara Law to a share in the estate. The case of Girja Bai v. Sadashiv Dhundiraj(5), which is the latest pronouncement of the Judicial Committee on this question, appears to conclude the matter in favour of the plaintiff. In that case the plaintiff's husband one Harihar, a member of a joint Mitakshara family, having previously expressed his intention to effect a separation instituted a suit for that purpose. The defendants did not dispute the right which he claimed to a third share in the family property, but after some attempts at a compromise and before any decree in the suit was made Harihar died and his widow applied for substitution as heir and legal representative of her deceased husband. The defendants claimed Harihar's share by right of survivorshio on the ground that no partition had taken place at the date of his death. Mr. Ameer Ali in delivering their Lordships' judgement referred to the earlier case of Surai Narain v. Iqbal Narain(6), where it was laid down that “a definite and unambiguous indication by one member of an intention to separate himself and to enjoy his share in severalty may amount to separation. But to have that effect the intention must be unequivocal and clearly expressed.” He then proceeded: “It would probably be enough for the determination of this appeal to say that nothing could be more unequivocal or more clearly expressed than the conduct of Harihar in indicating his intention to separate himself and enjoy his share in severalty by the notice of the 1st October 1908 coupled with this suit and that these acts amounted to a separation with all its legal consequences.” It is true that there was no denial in that case of the plaintiff's right, but it is clear from the rest of the judgment that the principle upon which their Lordships' decision was based was not confined to cases of agreement between the parties. A passage in the judgment of Dwarkanath Mitter, J., in Musammat Deo Bunsee Kooer v. Dwarkanath(7) in which that learned Judge says: “It is settled law that every member of a joint undivided family has an indefeasible right to demand a partition of his own share. The other members of the family must submit to it whether they like it or not,” was referred to with approval and in referring to the judgment of the Board in Appovier v. Rama Subba Aiyan(8), Mr. Ameer Ali says: “Some of the Courts in India have supposed Lord Westbury's expressions to imply that the severance of status can take place only by agreement. Their Lordships have no doubt that this is a mistaken view.”
9. We think that the plaintiff in the present case unequivocally and unmistakably manifested his intention to separate himself from the defendants at the latest on the 12th August, 1913, the date when he instituted the suit. The other material dates are 4th August, 1915 when the preliminary decree was made, and 21st November 1915 when the son was born. It was contended that as the plaintiff was a minor when the suit was instituted, he was incapable of expressing any intention at that date, but no argument was adduced in support of this contention nor were any authorities referred to and we are unable to accede to the proposition that under Hindu law a minor cannot express either himself or through his guardian an intention to do that which is clearly not against his own interest. We think therefore that the plaintiff's share in the family property should not be diminished by reason of the birth of another member of the family more than two years after the time when he must be deemed to have separated from the joint family.
10. The result of this decision will be that the plaintiff will receive one-fifth of the whole property in the first instance, the remaining four-fifths being distributed between the four defendants and the after-born son, the female members taking in lieu of maintenance only. These shares will be one-fifth of four-fifths or four-twenty-fifths of the whole. Girija Ojhain's share will then be distributed between the three male members of the family, including the after-born son who was born before the death of Girija. They will therefore each receive in addition to their original shares one-third of four-twenty-fifths, that is, four-seventy-fifths. This works out in the following proportions: The plaintiff nineteen-seventy-fifths, his father sixteen-seventy-fifths the after-born son sixteen-seventy-fifths and the two surviving females twelve-seventy fifths. The decree will direct partition of the property moveable and immovable which belonged to the joint family at the date of the institution of the suit and of any property acquired subsequently by employment of the joint family funds and for that purpose the Commissioner will take the usual accounts. As neither party in this case has succeeded in his appeal there will be no order as to costs.
V.S/R.K
11. Order accordingly.
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