The plaintiff in this case, Bilaso, is a Hindu widow, the mother of two sons, Puran Mal and Lali Mal, who were members of an undivided family, and before partition the right, title, and interest of one son, Puran Mal, in a house forming the ancestral property were sold in execution of a decree and purchased by one Dina Nath, and subsequently the other son, Lali Mal, obtained a decree against the auction-purchaser entitling him to half the house. Bilaso has brought a suit to recover from the auction-purchaser and her son Lali Mal her share on partition of the property. The question referred to us is whether a Hindu widow, entitled by the Mitakshara to a proportionate share with sons upon partition, can claim such share, not only quoad the sons, but as against an auction-purchaser at a sale in execution of the right, title, and interest of one of the sons before voluntary partition.
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 son's 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. Such being the right of the mother, and the son's obligation towards her in respect of the assignment of a specific share of the property on partition, we have to see what position the purchaser in execution of the right, title, and interest of a member of an undivided family takes.
In Sreemutty Soorjeemoney Dossee v. Denobundoo Mullick (1) their Lordships of the Privy Council, referring to a co-parcener in an undivided family, observe: “His rights may pass to strangers, either by alienation, or, as in case of creditors, by operation of law, but in all cases those who came 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 course a right to call for a partition (2).” And more recently in Deendyal Lal v. Jugdeep Narain Singh it was held that the right of the purchaser at the execution-sale is limited to that of compelling the partition which his debtor might have compelled, had he been so minded before the alienation of his share took place. The auction-purchaser of the undivided interest of the son thus stands strictly in the place of the latter and is in no better 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. It may be noticed that in the case of Deendyal Lal v. Jugdeep Narain Singh already referred to, their Lordships expressly refrained from making any declaration as to the extent of the judgment-debtor's undivided share acquired by the auction-purchaser, as they observe if a partition takes place his wife may be entitled to a share. The answer to the reference should be in the affirmative.