1. The following genealogical tree will facilitate the understanding of the facts of the case:

2. At Dhondia's death he left behind two widows Mts. Sarji and Gangi, one son Govinda and two grandsons Waman and Salkya by his predeceased son Dhaoklya. On 21st August 1920 Govinda effected a partition between himself and his two nephews as represented by their mother Mt. Sunder, Govinda getting Survey No. 178/2, area 9 acres 37 gunthas, besides some house property and the nephews getting Survey Nos. 7-1 and 27/3, total area 9 acres 19 gunthas, and some house property. After partition Govinda sold about 6 acres to the present appellant Bhaurao (Defendant No. 5) by a sale deed dated 19th February 1921 for Rs. 1,200 and the remaining portion to one Bhagwant by a sale deed dated 23rd November 1921 for Rs. 1,000. The present appellant had to sue and obtain a decree for possession against his vendor (Ex. 5 D1 to 5) and also to sue for and obtain a pre-emption decree against Bhagwant (Ex. 5 D6 to 10). The whole of the land allotted to defendant Govinda is thus held by and in the poesession of Defendant No. 5. The plaintiff instituted this suit far partition on 5th March 1923 against her son, stepson's sons and her co-widow Sarji and also joined the purchaser from her son as a party defendant on the ground that she is not bound by the partition of 1920 to which the was not a party, and that the entire estate may, therefore, be partitioned and her ¼th share thereof put in her separate possession. The Defendant No. 1, Govinda, did not appear to contest the right of his mother to ask for a re-partition. Defendant No. 2, Sarji, urged that she also was not a party to the partition and her claim having been ignored at it she must get her ¼th share. Defendants Nos. 3 and 4 urged that the partition should be maintained on the ground that plaintiff and Defendant No. 2 were not legally entitled to any share, and if they had any they have waived their claim to a share at the partition and acquiesced in it without claiming any share for themselves. Defendant No. 5 contested the suit on grounds common to Defendants Nos. 3 and 4 and also on the ground that plaintiff, as a mother, had no right to sue for or require a partition and that at the partition which took place between her only son and stepson's sons she could not have been legally assigned any share. He also disputed the extent of her share. He similarly contested Mt. Sarji's right to a share at a partition between her grandsons and stepson.

3. The first Court held that neither Mt. Gangi (plaintiff) nor Mt. Sarji (Defendant No. 2) had waived her claim to a share at the partition and that neither of them having acquiesced in it, plaintiff was entitled to re-open it and claim a partition, and further that the share of plaintiff and Defendant No. 2 in the entire family estate was ¼th each. Accordingly a preliminary decree declaring the shares and directing a partition of the entire family estate was passed in the case. Against this decree Defendant No. 5 alone appealed to the Additional District Judge, Amraoti, who confirmed the decree following the view taken in Damodardas Maneklal v. Uttamram Maneklal(1), that under the Bombay School the plaintiff, as mother, is entitled to the partition claimed.

4. Defendant No. 5 has, therefore, come up in second appeal impleading the plaintiff and the rest of the defendants as co-respondents The grounds of appeal ??? the plaintiff's right to sue and object to the re-opening of the partition already made, as prejudicial to his interests as a purchaser for value after partition. The appellant's main argument is that a mother has neither an independent right to sue for partition, nor can she claim any share where her only son comes to a partition with his predeceased step-brother son. He also argues that in any case the repartition, if any, should be so made as to protect his interest he being a purchaser for value.

5. During the pendency of this second appeal the Defendant No. 2, Mt. Sarji, died. Her death has given rise to a further contention whether the four annas allotted to her should revert to her grandsons alone, or to them, Defendant No. 1 and plaintiff equally, and whether the appellant can claim the benefit of any enlargement, which may thereby accrue to his vendor's share. While the respondent Mt. Gangi's pleader urged that the enlargement by reason of the death of Mt. Sarji must share for the benefit of all the sharers, the Respondents 3 and 4 contend that as the share of Sarji was carved out of their share it must wholly go to them: and the appellant cannot claim any benefit out of it.

6. The following texts are relevant to the questions involved in this appeal. Mitakshara Chapter 1, S. 5, Verse 1 (Yajnyavalkya, 2 lxxa). “Among grandsons by different fathers the allotment of shares is according to the fathers.” At page 238 the following passage from. Yajnyavalkya is reproduced in Vivad Chintamani:

Should a brother die before partition his share shall he allotted to his son provided he has received no fortune from his grandfather…. That son's son shall receive his father's share from his uncle or from, his uncle's son and the same proportionate share be allowed to all the brothers according to law.

7. At page 240 of the same book we find the following text of Vrihaspati quoted:

On the death of the father the mother (Janani) has a claim to an equal share with her own sons, mothers (matara) take the same share.

8. The following explanation is appended:

Mother (Janani) means one who has male issua Mothere (matara) means step-mothere who have no male issue. These females shall have equal share with the sons.

9. At the same page the following text of Vyas is quoted:

Even childless wives of the father are pronounced equal sharers and so are all the paternal grandmothers who are declared equal to mother.

10. At page 241 the quotation from Yajnyavalkya-Mitakshara, Chapter 1, S. 7 verse 1 runs thus:

Of heirs dividing after the death of the father let the stepmother also taken an equal share.

11. Vyavaharmayukh, Chapter 4, S. 4, 18, 19, gives the following quotation from Vishnu: The mothers become receivers of shares according to the shares of the sons.”

12. The cumulative effect of all these texts and authorities on Hindu Law so, far as they have a bearing on the questions raised in this appeal is that when after her husband's death her son comes to a partition with her stepson or stepson's son a mother as also a stepmother is entitled to an equal share with her own son or stepson and that the same is the case with the grandmother and further that the nephews take in a partition with their uncle their father's share, i.e they take per stirpes and not per capita.

13. The case law also favours their right to an equal share. The case of Sheo Dyal Tewaree v. Judoonath Tewaree(2) which arose under the Mitakshara contains a very interesting discussion of the question why the mother is asssigned an equal share. In Damoodur Misser v. Senobutty Misrain(3) also the mother was held entitled to an equal share. Her right has been admitted since long in the Bombay Presidency as will be seen from the trend of decisions of the Bombay High Court: West and Buhler's Hindu Law 4th Edition, pages 710, note (g) and 750-1, Jamnadas v. Lalitaram(4), Damodaradas Maneklal v. Uttamram Maneklal; so also the step-mother is held entitled to a share; see Hosbanna Devanna Naik… v. Devanna Sannappa Naik….(6). The Allahabad High Court recognises the right of a mother to a share, see Bilaso v. Dina Nath(7), but not that of a grandmother, Sheo Narain v. Janki Parsad(8). The rule that a widow shall receive from her sons who were born of her an equal share with them and she cannot receive a share from children of another wife”

14. Recognized in Hemangini Dasi v. Kedarnath Kundu Chowdhry(9) is peculiar to the Dayabhaga School. No such distinction is recognized under the Mitakshara and the appellant's contention based on this rule has therefore no application.

15. The plaintiff as the mother and Defendant 2 as the stepmother of Defendant 1 or even as the grandmother of Defendants 3 and 4, being thus entitled under law to an equal share, their claim was bound to be considers 1 at the time when Defendant 1 and Defendants 3 and 4 effected partition in 1920. The Courts below have concurrently held that these females had not acquiesced in the partition. As there is nothing to show that they had waived their claim to a share they are not bound by it. But it is contended that all that is enjoined by the texts is to allot to a mother on division a share equal to the son's and that they do not recognize in her an independent right, to demand partition, or, in other words, to enforce a partition as against her son. But this does not mean that she is bound by a partition made behind her back without setting apart a share for her. Their Lordships of the Privy Council in Ganesh Dutt Thakoor v. Jewach Thakoorain(10) while dealing with law in force in Bengal observed as follows:

There is no doubt that, according to the law in force in Bengal, the mother, though not entitled to require a partition, so long as her sons re main united: is entitled, if a partition takes place between her sons, to receive the share…… She may, of course, acquiesce in the division of the property between her sons without claiming any share for herself.

16. In that case also there was no evidence of acquiescence on the part of the mother. With regard to Mr. Bannerjee's contention that the omission to reserve a share for the mother rendered the partition invalid their Lordships observed as follows:

In support of this contention he relied on the case of Krishnabai v. Khangowda(11) In which it was decided that a portion effected without reserving any share for a minor member of the family, and without the consent of some one authorised to act on his behalf, is invalid as against the minor. So here, their Lordships recognise that the mother is not bound by a partition to which it is not shown she ever assented; and the suit being one for a declaration of rights under the partition, in which all the parties interested are represented, and in which the mother claims her share, their Lordships have felt no difficulty in giving effect to her claim.

17. In principle there is no difference between the present suit and the suit which went up before the Privy Council except that here the mother is the plaintiff while she was a defendant there. In both, partition had already been made before suit, and the mother's rights were ignored altogether. That one was a case under the Bengal School and the other is under the Mitakshara also does not make any difference in the principle applicable, because, so far as I understand the law the position of a mother is in this matter more favoured under the Mitakshara than under the Dayabhaga. In view of the fact that the partition was made in 1920, no question of the mother not being “entitled to require a partition so long as the sons remain united.” arises in this case. To entertain the plea that plaintiff has no right to sue under such circumstances would be to put premium on fraud and to refuse relief to the persons defrauded, or to hold him or her “bound by a partition to which it is not shown he (or she) ever assented.”

18. The appellant next contends that he is a purchaser for value and his interests would be highly prejudiced if the partition is allowed to be re-opened at the instance of plaintiff, and his vendor's share reduced. It must not be forgotten that a purchaser, from a son takes subject to the mother's right, and stands in his vendor's shoes. Even at a partition by the vendee the mother was held entitled to a share: see Jagobandu v. Rajendra(12). In the Full Bench decision in Bilaso v. Dina Nath the mother's suit to enforce a partition and to obtain a proportionate share was decreed against an auction purchaser of the right, title and interest of one of the sons before voluntary partition, as he had subsequently obtained a partition of his vendor's share behind the back of the mother. The following observations at page 90 are very pertinent:

In an undivided family consisting of mother and sons, the mother is only entitled to maintenance so long as the family remains undivided in estate; but in case a partition is made the law gives her a right to an assignment of a share in the property left. By her husband equal to a sons share. The right the mother has is a right to participate in the property left by her husband, and it has been described as a latent and inchoate right of participation which becomes effective when separation takes place.

19. On the authority of the Privy Council rulings in Sreemutty Soorjeemoney Dossee v. Denobundoo Mullick(13) and Deendyal Lal v. Jugdeep Narain Singh(14) the Judges of the Full Bench gave the following opinion in answer to the reference:

The auction purchaser of the undivided interest of the son thus stands strictly in the place of the latter and is in no batter position and is bound by obligations which bound his vendor, and the mother's right to an assignment of a share out of the whole joint property will accrue on a partition being made, and is of a character which cannot be defeated by the purchaser.

20. The plaintiff is thus perfectly within her rights to ask the Court to declare her right and to hold that she is not bound by the partition of 1920 and further to assign her her proper and legitimate share by ordering a re-partition of the entire assets of the family. As a decree in a partition suit enures for the benefit of the defendants also Defendant No. 2 also was held equally entitled to a similar share. It follows that the plaintiff's share was rightly held to be ¼th; so also that of Defendant No. 2 was ¼th. But a further question has arisen now owing to the death of Defendant No. 2 during the pendency of this second appeal. In Debi Mangal Prasad Singh v. Mahadeo Prasad Singh(15) their Lordships of the Privy Council have held that under the Mitakshara Law, in the absence of any express contract to the contrary, the share obtained by a mother on a partition of ancestral property amongst the sons does not become her stridhan property. It is also observed that if the share goes to her in lieu of maintenance it must revert on her death to the estate out of which it was given. The share allotted to Mt. Sarji must revert on her death to the estate from which it was carved out.

21. A further question arises as to whether consequent on such reversion there should be an all round redistribution of that share amongst the parties so as to give a third of it to plaintiff, a ⅓rd to Defendant 1 and the remainder to Defendants 3 and 4; or whether the benefit should go to only Defendant 1 and Defendants 3 and 4 in equal shares, to the exclusion of plaintiff. Defendants 3 and 4 contend that it must wholly endure for their benefit because their grandmother's maintenance was bound to come out of their share, whereas plaintiff's contention is that in the absence of Sarji the assets would have been divided into three equal shares. Inasmuch as in the partition of 1920 the claims of plaintiff and Sarji were ignored and as none of them was bound by it and each had an independent right to reopen it, it follows that the removal of Sarji by her death must reduce the number of the participators of shares with the result that her share on her death must be redistributed amongst all of them. As the death has taken place at a time when the matter of the extent of the shares allot table to the plaintiff is still sub judice and before the final adjudication of this Court is given, the plaintiff, equally with her son and stepson's sons, is entitled to the benefit of the enlargement. The appellant who is a transferee from Defendant 1 must necessarily get the benefit of the enlargement of his vendor's share which will be 5a. 4 p. The plaintiff's share being 5a. 4 p. the share of Defendants 3 and 4 will of course be 5a. 4 p. of the entire family assets.

22. The appellant contends that in adjusting the rights and equities between the parties the divisible assets may as far as possible be so distributed as to leave him in possession of the property purchased by him for valuable consideration, but, as shown above, he purchased his vendor's share subject to the rights of the co-sharers and other persons entitled to a share on partition. The right of the purchaser to have the property of his purchase allotted exclusively to his vendor's share, is not an absolute right, but is in the nature of an equitable right and the Courts do as a matter of fact take this into consideration in adjusting the equities between the parties, as far as possible. It is not known whether the partition directed by the preliminary decree has been carried out actually as regards the fields in which the appellant is interested. The only suggestion, therefore, which I can make under the circumstances is that it will be open to the Court or the officer effecting the partition to so marshal the assets as to allot as far as possible the property purchased by the appellant to his vendor's share, if it can be done without prejudice to the rights of plaintiff and Defendants 3 and 4. The decree of the lower Court will be modified by declaring that the shares of the parties are as fixed in this Court and by inserting suitable words to give effect to the above observations not as a direction of this Court, but as a mere suggestion. A subordinate point which has been argued before me requires consideration. The appellant submitted that a declaration may be granted to the effect that the whole of the plaintiff's share or at any rate a half of it shall on her death go to him. I do not think any such declaration is necessary or could be given in anticipation, as everything must depend upon the state of facts which may exist when that contingency occurs.

23. The main contentions in the appeal have failed. Whatever success the appellant has secured here is due to events which came into existence by the death of Mt. Sarji. Under the circumstances I direct that the appellant must bear his own costs and pay those of the Respondents 1, 3 and 4. There will be two sets of costs. As the Respondents Nos. 3 and 4's guardian ad litem in this appeal was paid his remuneration by the appellant, no separate fee will be charged in the schedule of costs of this Court.

24. Appeal dismissed.