Jodoonath Dey Sircar And Another v. Brojonath Dey Sircar And Another.

Macpherson, J.:— The first question in this suit is whether the plaintiffs are entitled to have a partition of the property which belonged to their father, and is now held by them jointly with the defendant Brojonath. It is contended that by reason of what has occurred in the former suit, the three sons are entitled to a partition, each taking one-third. On behalf of the mother Anundomoyee it is said, that if there is to be a partition amongst her sons, she is entitled to a share equal to a son's share; but it is also argued that, under the will of the father (although that will has been partly set aside in the other suit), the estate is still impartible, and that the grandsons' maintenance is a charge on the estate. There is, however, no doubt that all the clauses of the will making the estate impartible (including the one which relates to the maintenance of the grandsons) have been set aside by the decrees in the former suit.

Mr. Piffard, for the defendant Brojonath, contends that the mother cannot now claim maintenance, because in the former suit the Courts held she was not entitled to maintenance. But although the Court did decline to make any special provision for her maintenance, it did not say that she no longer had any right to maintenance: and the decree is in fact silent on the subject. She certainly has a right to maintenance: and as this is so, and there is to be a partition, the only question is as to the share to which she is entitled in lieu of maintenance.

As a general rule, a mother is, on partition by her sons after the father's death, entitled to a share equal to that of a son. There being three sons, the property would, in an ordinary case, be divided into four shares, of which one would go to the mother for her life. But the mother has, in this particular instance, received a considerable sum of money under the will of the father. She having been thus in some degree provided for by her husband, the question arises whether she is entitled to any, and, if to any, what share. I entertain no doubt that the rule in such a case is that the mother is entitled to such a share as, taken with what she has already received from her husband, will give her a share equal to the share of a son. If under the will Anundomoyee has already received more than such a share, she is now entitled to nothing further. If she has received less, she is entitled to the difference between what she has already received and the share of a son.

The Hindu law on the subject is the same in principle in the case of a partition between a father and his sons in the mother's lifetime, and in the case of a partition between sons after the death of the father. And there is clear authority for saying that in the case of partition in the father's life, the rule is such as I have indicated. In the Vyavahara Mayukha, Ch. iv, s. 4, v. 15, it is said:— “In a case of equal partition between a father and his sons, a share belongs also to the wife; says Yajnavalkya:— ‘If he make the allotments equal, his wives, to whom no separate property had been given by the husband pr the father-in-law, must be rendered partakers of like portions.’ If any had been given, they are only to get half, for he adds, ‘or if any had been given, let him assign the half.’ The half, meaning so much as with what had been before given as separate property (stridhan) will make it equal to a son's share. But if her property be [already] more than such share, no share [belongs to her.]” Again in the Dayabhaga, Ch. iii, s. 2, v. 31, it is said:— “The equal participation of the mother with the brethren takes effect if no separate property had been given to the woman. But if any have been given, she has half a share. And if the father make an equal partition among his sons, all the wives who have no issue must have equal shares with his sons… … “To a woman whose husband marries a second wife, let him give an equal sum as a compensation for the supersession, provided no separate property have been bestowed on her, but if any have been assigned let him allot half?” On this Mahecvara has the following commentary on the words, “Let him allot half.” “The allotment of a moiety implies that the other moiety is completed by the woman's separate property. Else so much only should be given as will make her allotment equal to the sons.” So in Colebrooke's Digest, Bk. v, s. 2, v. 87, as regards presents to be given to a second wife:— “To a woman whose husband marries a second wife, must be given an equal present on that second marriage, or equal to what the new wife shall receive on the nuptials, if she had herself received none of the wealth usually given to women; but if such wealth had been delivered to her, she is held entitled only to a moiety or part of the gift at the second wedding.” In the note, Jagannatha says:— “Moiety (ardha) in the masculine gender signifies part in general, not equal parts, or exact half, which is signified by the same word in the neuter gender.”

I think these authorities show, and the reason of the thing would lead to the same conclusion, that the expression “half” as applied to the share to be taken by a wife or mother is not to be read as meaning “half” literally, but as meaning such portion as may with what she has already received give her an equal share. Altogether, I have no doubt that, according to Hindu law, the mother is entitled to as much as, and no more than, will make what she in the whole received from her husband's estate equal to a son's share.

The decree will direct an enquiry as to the value of the property not disposed of by so much of the father's will as has been declared valid, — that is to say, the value of the property divisible now must be ascertained, as also the value of the property received by the mother from the father or under his will. If it shall appear that what she has received under the will and otherwise from the father is less than a son's share, so much shall be allotted to her as will make her share equal to a son's share. By consent the family-house (No. 30) is not to be partitioned or included in the inquiry. The directions contained in the decrees in the other suit must be attended to and carried out, and of course the partition can be only of such property as is not required for that purpose. This suit is to be taken as supplemental to the former suit, and all further proceedings must be considered as taken in both suits. No order will be made as to costs at present.

Attorneys for the plaintiffs: Messrs. Gray and Sen.

Attorneys for the defendant Brojonath Sircar: Messrs. Rogers and Remfry.

Attorney for the defendant Anundomoyee Dossee: Baboo R.N Bose.