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Case Number

Appeal No. 65 of 1920

Judges

Mookerjee
Buckland, JJ.

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Smart Summary

Case Summary — Opinion of Mookerjee, J. (with Buckland, J. concurring)

Factual and Procedural Background

The suit concerned partition of ancestral properties originally belonging to Kedernath Chatterjee, who left a widow (Thakamani Debi) and four sons (Rajeodra Nath, Bidhu Bhushan, Sudhir Kumar and Akshay Kumar). On 13 August 1917 the plaintiff purchased from one son, Akshay Kumar, his right, title and interest in the ancestral properties. On 8 April 1919 the plaintiff instituted the present suit for partition, claiming separate possession of one-fourth share after partition by metes and bounds (the plaintiff being a purchaser of a son's interest). The widow, joined as a defendant, contended that she was entitled to a share on partition and that the plaintiff therefore could claim only one-fifth. The Subordinate Judge accepted the widow's contention and made a decree accordingly. The plaintiff appealed against that preliminary decree.

Legal Issues Presented

Whether a Hindu widow is entitled to a share on partition when partition is claimed not by one of her sons but by a purchaser of a son's interest (i.e., whether a purchaser stands in the vendor-son's place for purposes of the widow's right).
Whether, in assessing the widow's allotment on partition, the value of Government Promissory (G.P.) Notes given to her by her father should be deducted in addition to those given by her husband (i.e., what stridhan/othr gifts are to be set off against the widow's share).

Arguments of the Parties

Appellant's Arguments

The appellant (plaintiff) argued that the widow is not entitled to a share when partition is claimed by a purchaser of the share of one of her sons rather than by a son himself; the appellant relied on a strict construction of a passage in the Dayabhaga (Chap. III, s.2, para.29) which, it was argued, allows the mother's share only when partition is made by brothers of the whole blood.
On the subsidiary valuation point, the appellant contended that the court should deduct the full value of G.P. Notes totaling Rs. 5,000 (as alleged in the plaintiff's deposition) from the widow's allotment, and that no distinction should be made between G.P. Notes received from her husband and those received from her father.

Respondent's / Widow's Position (as presented in the record)

The widow contended that she was entitled to a share on partition, which would reduce the plaintiff's share to one-fifth.
As to stridhan facts: the widow admitted receiving G.P. Notes of Rs. 1,500 from her husband and G.P. Notes of Rs. 3,500 from her father. The Subordinate Judge accepted the widow's account for the husband-originated notes and directed that the value of her allotment be one-fifth of the estate minus the value of the G.P. Notes received from her husband (nominal value Rs. 1,500).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Amrita Lal Mitra v. Maniak Lal Mallick	Established that a Hindu mother is entitled to be maintained out of joint family property and that if anything is done affecting that right (e.g., sale of a share) her right comes into existence.	The court treated this decision as directly in point and used it to support the proposition that a purchaser from a son takes subject to the mother's right and cannot defeat it by alienation.
Jogendra Chandra v. Fulkumari	Recognised that the widow's maintenance is a charge on the estate and described the mother's right as a quasi-contingent right which becomes effective on partition; emphasised purchasers take subject to rights that arise under Hindu law on partition.	Used to show historical consistency with Amrita Lal and to support the view that a son cannot deal with his share so as to defeat the mother's right.
Bilaso v. Dina Nath (Full Bench, Allahabad High Court)	Ruled that a Hindu widow entitled under Mitakshara law to a proportionate share can claim it against an auction-purchaser of a son's right prior to voluntary partition; described the mother's right as latent/inchoate until partition.	Applied as supporting authority that purchasers or strangers taking in place of a co-parcener take only existing rights subject to the mother's contingent right.
Suryamani Dossee v. Dinabandhu Mallik	Stated that rights of a co-parcener may pass to strangers by alienation, but those who come in take only the rights as they stand, including the right to call for partition.	Relied upon to reinforce that purchasers take subject to the co-parcener's existing liabilities and admit the mother's right to demand partition.
Barahi v. Debkamini	Authority for the proposition that a mother's allotted share on partition is given as provision for maintenance and she is not entitled to a share if only a portion of joint property is divided while bulk sufficient for maintenance remains undivided.	The court noted this decision but explained it did not disturb the general rule that a purchaser cannot defeat the mother's right by alienation; Barahi v. Debkamini was distinguished as addressing partial partitions and maintenance adequacy.
Sarolah v. Bhoobun Mohan	Referenced as supporting the proposition that the mother's allotment is by way of maintenance provision.	Referred to in connection with Barahi v. Debkamini to explain limits on the mother's right when only partial partition occurs.
Hemangini v. Kedar Nath	Referenced in relation to the principle that mother's share is for maintenance and the limits of that right.	Used to support the interpretation of authorities on the mother's maintenance-share and to explain that partial division may preclude a share if adequate maintenance remains.
Ganesh Dutt v. Jewach Thahooain	Interpreted Dayabhaga as saying the mother's right to claim a share arises only when her sons come to a partition.	The court considered the appellant's reliance on a Dayabhaga passage (as interpreted in Ganesh Dutt) and rejected the appellant's strict construction when applied to partitions enforced by purchasers.
Jodoonath v. Brojonath	Held that if a mother received separate property (gift or will) from her father amounting to more than a son's share, she is entitled to nothing more on partition; if she received less she is entitled to enough to make up to a son's share. Supported deduction of stridhan given by husband or father-in-law.	The court relied on this authority to justify deducting only the stridhan received from husband/father-in-law (and not gifts from the mother's own father) from her allotment.
Kishorimohan v. Monimohun	Approved the view that deductions should be made when mother has received separate property from husband/father-in-law.	Used as supporting precedent for the rule on deduction of stridhan from the mother's share.
Poorendra v. Hemangini	Followed Jugomohan v. Sarodamoyee and supports the rule on deductions of stridhan from husband's side.	Cited as additional support for the treatment of stridhan deductions.
Jugomohan v. Sarodamoyee	(Referenced as authority followed in Poorendra v. Hemangini) Supports the principle regarding stridhan and deductions from the mother's allotment.	Referenced indirectly through later cases to bolster the stridhan deduction principle.
Vyavastha Darpana (Syamacharan Sarkar, edn. cited)	States the rule that a mother participates equally with sons if she has not been given separate property by husband or kinsmen; if she has, the separate property is to be balanced against her coparcenary share.	Quoted to support the settled rule that stridhan from husband/father-in-law is to be set off against the mother's share; used to justify the Subordinate Judge's deduction treatment.

Court's Reasoning and Analysis

The court addressed the main contention — that a widow's right to a share on partition can be defeated where partition is sought by a purchaser of a son's interest rather than by a son himself — by reference to established authorities and to general principles of property law under Hindu law.

First, the court accepted the precedent in Amrita Lal Mitra v. Maniak Lal Mallick and earlier rulings (including the observations by Maclean C.J. and Banerjee, J. in Jogendra Chandra v. Fulkumari and the Full Bench in Bilaso v. Dina Nath) which treat the widow's right as a charge on the estate and as a latent or quasi-contingent right that becomes effective on partition. From these authorities the court drew two connected propositions:

A purchaser from a son "stands in the shoes" of the son and takes subject to the same rights and liabilities as the vendor-son; and
No owner of property can convey a greater right than he himself possesses, so a son cannot by alienation defeat the mother's contingent right to share on partition.

The court then considered the appellant's argument based on a literal reading of Dayabhaga (Chap. III, s.2, para.29) which, on a strict construction, speaks of a mother's share when partition is made by brothers. The court rejected the appellant's narrow reading for several reasons stated in the opinion:

The Dayabhaga passage was concerned with partition made by members of the family (coparceners) and did not address the separate problem of partition enforced by a stranger (a purchaser) who becomes a joint owner; hence the treatise does not directly govern that situation.
Partition enforced by a purchaser is not "Dayabhaga" partition in the textual sense and must therefore be decided by general principles consistent with, but not limited to, the Dayabhaga text.
A literal restrictive construction would lead to an unreasonable and arbitrary result: the mother's right would depend on the accident of whether the purchaser was plaintiff or defendant — an outcome the court found irrational.

On that basis the court held that the mother's right to a share on partition cannot be defeated by a son's alienation and that when partition occurs between sons and a purchaser of a son's interest the mother is entitled to a share equal to that of a son. The practical effect in the present case was that the plaintiff's share had been correctly fixed at one-fifth.

On the subsidiary point concerning G.P. Notes (stridhan), the court analysed the factual admissions: the widow admitted to G.P. Notes of Rs. 1,500 from her husband and Rs. 3,500 from her father; the plaintiff had alleged larger sums in parts of his pleadings/deposition. The Subordinate Judge had allowed deduction only for the G.P. Notes received from the husband (nominal Rs. 1,500). The court upheld that approach, relying on authorities (notably Jodoonath v. Brojonath and later cases) and texts (including Vyavastha Darpana) which establish that stridhan given by the husband or by the father-in-law should be set off against the mother's coparcenary share, whereas gifts from the mother's own father (her natal family) are not treated as discharging the husband's family's obligation of maintenance and so are not to be deducted in assessing her coparcenary allotment.

Holding and Implications

Final Holding: The decree of the Subordinate Judge is affirmed and the appeal is dismissed.

Consequences and direct effects on the parties:

The plaintiff's share was held to be correctly determined as one-fifth of the coparcenary estate (i.e., the widow is entitled to a one-fifth share when partition is claimed between sons and a purchaser of a son's interest).
On valuation at partition the widow's allotment is to be reduced only by the value of stridhan (G.P. Notes) received from her husband (nominally Rs. 1,500 as accepted by the Subordinate Judge), and not by notes received from her father.
The appeal is dismissed with costs; the court assessed the hearing fee at ten gold mohurs. Buckland, J. agreed with this outcome.

Broader implications: The court applied and reaffirmed existing authorities on the mother's contingent right and on treatment of stridhan for purposes of partition; the decision resolves the specific dispute between these parties by applying the cited precedents and principles.

Disposition

APPEAL DISMISSED; DECREE OF THE SUBORDINATE JUDGE AFFIRMED.

The appeal is dismissed with costs; hearing fee assessed at ten gold mohurs.

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Jogobondhu Pal v. Rajendra Nath Chatterjee

Mookerjee, J.:— This is an appeal by the plaintiff against the preliminary decree in a suit for partition of joint properties. The subject matter of the litigation originally belonged to one Kedernath Chatterjee, who left a widow, Thakamani Debi, and four sons, Rajeodra Nath, Bidhu Bhushan, Sudhir Kumar and Akshay Kumar. On the 13th August, 1917, the plaintiff purchased from Akshay Kumar his right, title and interest in the ancestral properties. On the 8th April, 1919, the plaintiff instituted the present suit for partition of the properties in which he had become a joint owner by purchase, and claimed to be placed in separate possession of an one-fourth share after partition by metes and bounds. The widow of the original owner, who was joined as a defendant, contended that she was entitled to a share in the event of partition, and that the plaintiff was consequently not entitled to more than an one-fifth share. The Subordinate Judge has given effect to this contention and has made a decree accordingly. The substantial point which has been argued on the present appeal is that the widow is not entitled to a share, inasmuch a partition is claimed, not by one of her sons, but by the purchaser from one of them. We are of opinion that there is no foundation for this contention.

2. It was ruled by Mr. Justice Ameer All in the case of Amrita Lal Mitra v. Maniak Lal Mallick (1), that as a Hindu mother is entitled under the law to be maintained out of the joint family property, if anything is done affecting that right, as for instance, by the sale of any particular share by any of her sons, her right comes into existence.

3. The position of a purchaser from a son is exactly that of a son himself; be has the same rights and takes it subject to the same liabilities as those of the person from whom he purchased. This decision is precisely in point and was given twenty-one years ago. We have not been able to trace any judicial pronouncement where it has been doubted or dissented from or where an inconsistent rules has been formulated. Apart from this, it is plain that the view adopted by Mr. Justice Ameer All was not a new departure but purported to follow the opinion expressed by Maclean C.J and Banerjee, J. in 1899 in the case of Jogendra Chandra v. Fulkumari (2). Maclean, C.J observed, no doubt with reference to an entirely different set of circumstances, that as the widow's maintenance specially as against the sons is a charge on the estate, a right in rem in the fullest sense, adhering to the property into whatever bands it may pass, a right convertible in the event of a partition into a right to a share equal to that of sons, it is difficult to see upon what principle a son can so deal with his share as to defeat that right of his mother. Mr. Justice Banerjee emphasised the view that as a general rule no owner of property can convey to any person a higher right than what ht himself possesses, and that consequently the purchaser of joint family property from a member of a joint Hindu family must take it subject to the right of his vendor's co-sharers to demand partition and subject also to such rights of other persons (who were not strictly speaking co-sharer with the vendor at the date of the alienation) as may arise under the Hindu law upon partition. A similar view had been adopted in 1880 by a Full Bench of the Allahabad High Court in Bilaso v. Dina Nath (3), where it was ruled that a Hindu Widow, entitled under the Mitakshara law to a proportionate share with sons, upon partition of the family estate, can claim such share, not only against the sons, but as against an auction-purchaser, at the sale, in the execution of a decree, of the right, title and interest of one of the sons in such estate, before voluntary partition. It was explained that the right the mother has is a right to participate in the property left by her husband, a latent and inchoate right of participation which becomes effective when separation takes place; in other words, she has, as Maclean C.J put it, in the case already mentioned, a quasi contingent right which may ??? or cryshallise, it and when the partition takes place. (Sir Francls Macnaghten on Considerations on Hindu Law, page 57). It would be contrary to elementary principles to hold that a right of this nature is liable to be defeated by recourse to the device of an alienation, by one of the sons, of his share in the ancestral estate. The same doctrine was substantially recognised by Civil C.J In 1866 in the case of Suryamani Dossee v. Dinabandhu Mallik (4), when he said that the rights of a co-parcener in an undivided family may, in his life time, pass to strangers, either by alienation, or, as in the case of creditors, by operation of law, but in all cases those who come in, in the place of the original co-sharer, by inheritance, assignment or operation of law, can take only his rights as they stand, including of coarse the right to call for a partition. The view we take is not affected by the decision in Barahi v. Debkamini (5) which is an authority for the proposition that as the share allotted to a mother on a partition between her sons is given to her in lien of or by way of provision for her maintenance, (Sarolah v. Bhoobun Mohan (6); Hemangini v. Kedar Nath (7) she is not entitled to a share, if a portion only of the Joint property is divided and the bulk of the property, ample for her maintenance, remains undivided.

4. It has been contended, however, that the decision in Amrita Lal v. Maniclal Is supposed to the text of the Dayabhaga, which provides as follows in Chapter III, section 2, para 29

“When partition is made by brothers of the whole blood after the demise of the father, an ??? share must be given to the mother: for the ??? (of Vrihaspati) expresses, the mother should be made an equal sharer.”

5. This passage has been treated as authority for what must now be deemed settled law, namely, that the mother's right to claim a share arises, only when her sons come to a partition, in other words, that she cannot enforce her claim to a share so long as her sons remain joint and do not ask tot partition: Ganesh Dutt v. Jewach Thahooain (8). Now it has been argued by the appellant that under this text of Dayabhaga, strictly constructed, the mother is entitled to a share, only when her sons make a partition, and that, consequently, if a partition takes place at the instance of the purchaser of the share of a son, the mother cannot obtain a share. This made of interpretation is manifestly fallacious and proves too much; for it may as wall be maintained that the purchaser of a share of a son cannot at all maintain a salt for partition, inasmuch as such a suit is not explicitly authorised by the text of the Dayabhaga. The troth is that the author of the Dayabhaga had before him the problem of the partition of the family estate at the instance of a member thereof; he did not deal with the question of partition enforced by a stranger, who, by his purchase, becomes a joint owner of the family property but not a member of the joint family itself; a partition at his instance cannot, by any stretch of language, be called Dayabhaga or partition of heritage, and must consequently be regarded as foreign to the proper scope of the treatise of Jimutavahana. When partition of the family properties is claimed in such circumstances by a stranger to the family, the questions which arise must accordingly be determined by reference to general principles not inconsistent with these formulated for the case of partition enforced by a coparcener in the joint family. One of such general principles, as we have already explained, is that a member of the family cannot by alienation of his interest, prejudice the position of another member, because no owner of property is competent as a general rule, to convey to any person a higher right than what he himself possesses. The substance of the matter thus is that although the text of the Dayabhaga Chapter III, section 2, para. 29 speaks only of a partition made by sons and the allotment thereupon of a share to the mother, there is nothing said in the passage or in any other authoritative text of Hindu Law which we have been able to discover, as to the mother's right to a share on partition being so absolutely non-existent before partition, that it may be defeated by any of her sons alienating his share before a partition. Apart from this it is plain that the literal and restrictive construction of the passage of the Dayabhaga, as interpreted by the appellant, would lead to the obviously unreasonable conclusion that if the suit were instituted by one of the sons, the mother would be entitled to a share, even though one of the defendants happened to be the purchaser of the share of another son, while the mother would not be entitled to a share it the suit happened to be instituted by such purchaser himself; surely the rights of the mother could not on any rational ground, be made dependent upon a purely accidental circumstance, namely, whether the purchaser of the share of one of her sons is plaintiff or defendant. We hold accordingly that though a mother cannot compel a partition so long as the sons remain united, if a partition does take place between the sons, she is entitled do a share equal to that of a son in the coparcenary property, and she is entitled to a similar share on a partition between the sons and the purchaser of the interest of one or more of them. The share of the plaintiff has consequently been correctly determined to be one-fifth.

6. A subordinate point which has been argued before us requires consideration. The plaintiff alleged in the plaint that the lady had been given by her husband Government Promissory Note's of the value of Rs. 8,000 and that she was consequently not entitled to put forward a claim for maintenance. In his deposition, the plaintiff asserted that the lady had got from her husband G.P Notes worth Rs. 5,000. The lady admitted that her husband gave her G.P Notes of the value of Rs. 1,500, and that her father gave her G.P Notes of the value of Rs. 3,500. The Subordinate Judge has believed her statement and has directed that at the time of partition the value of her allotment would be the value of one-filth share of the estate minus the value of the G.P Notes she received from her husband of which the nominal value is Rs. 1,500. The appellant has contended before this Court that this direction is erroneous, that no distinction should have been made between the G.P Notes received from her husband and those received from her father, and that the value of her allotment should be the value of one-fifth share of the estate minus the actual value of the G.P Notes for Rs. 5,000. We are of opinion that this contention should not prevail. It is well settled that if the mother has received atridhan from her husband or father-in-law, its value should be deducted from her share. Mr. Justice Macpherson held in Jodoonath v. Brojonath (9) that on partition of the family property by the sons after their father's death, their mother is entitled to a share equal to that of a son, but it she has, before the partition, received property from their father either by gift or will, amounting to more than a son's share, she is entitled to nothing more on partition; if, on the other hand, she has received less, she is entitled on partition to as much as will make what she has received equal to a son's share. Reference was made to a text of Yajnavalkya where a share is allotted, in the case of a partition in the father's lifetime, to such wives as have had no separate property given to them by their husband or father-in-law. Reliance was also placed upon the Dayabhaga, Chap. III, section 2, Para. 31 and Jagannath's Digest tr. by Colebrooke, Book V, section 3, PI. 87. This view was approved in Kishorimohan v. Monimohun (10) and also receives support from the decision in Poorendra v. Hemangini (11) which followed Jugomohan v. Sarodamoyee (12). The rule is stated in similar terms in para. 587 of the latest edition of the Vyavastha Darpana of Syamacharan Sarkar (3rd Ed. 1883, Pl. I, P. 517): “the equal participation, however, of the mother with her sons takes effect, if no separate property have been given her by her husband or any of his kinsmen; but, if any have been so given, she is to have ardha or a portion which together with the stridhan will be equal to a son's share.” This statement is amply supported by the authorities sat out in para. 238 (p. 199) and para. 552 (p. 488). It is thus indisputable that the approved opinion is that the deduction to be allowed is in respect of stridhan received from the husband, from the father-in-law, and possibly also from any of the kinsmen of the husband; it does not include stridhan received from the family of the father of the lady. This position is eminently reasonable; the primary responsibility for maintenance rests upon the husband and the father-in-law, and gifts made by them may well be set off against the share of the family estate receivable in lieu of maintenance, on the occasion of a partition ??? her sons; the same theory cannot be predicated in respect of gifts received from her father and members of his family who are not primarily responsible for her maintenance. We accordingly hold that the plaintiff is not entitled to impose on the lady a farther redaction in respect of the G.P Notes received by her from her father.

7. The result is that the decree of the Subordinate Judge is affirmed and this appeal dismissed with costs. We assess the hearing fee at ten gold mohurs.

Buckland, J.:— I agree.

8. Appeal dismissed.

Jogobondhu Pal v. Rajendra Nath Chatterjee

Case Summary — Opinion of Mookerjee, J. (with Buckland, J. concurring)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments

Respondent's / Widow's Position (as presented in the record)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Disposition

Jogobondhu Pal v. Rajendra Nath Chatterjee

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