SAMU BAI Vs. SHAHJI MAGAN LAL

JUDGEMENT

(1.) This is a civil regular first appeal virtually by the defendant Mst. Samubai, though, curiously enough, the successful plaintiff has also joined her in this, against the judgment and decree of the Civil Judge, Sirohi dated the 7th February, 1959-in a suit for partition.

(2.) This appellant is the mother, while the plaintiff Sheshmal and the other defendant Magan Lal, are the sons. The plaintiff Shesh Mal filed a suit for partition of the joint family property impleading the present appellant and the other brother Magan Lal as defendants to the suit. The husband of Mst. Samubai, who was the father of the other two parties, died in 1927 A. D. The plaintiff appellant claimed a 1/3rd share o? the entire family property on the footing that the present appellant Mst. Samubai was also entitled to a similar share, that is, 1/3rd apart from the remaining 1/3rd, to which, the other brother Magan Lal would be entitled. The suit was resisted by Magan Lal, his contention being that he as well as the plaintiff was entitled to a half share each, and that their mother was not entitled to any share whatever in the joint family property. The learned trial Judge felt persuaded to accept this plea, and has consequently, passed a preliminary decree by which he has held the two brothers to be entitled to one half share each in the joint family property, and according to him, the mother was not entitled to any share therein. The mother Mst. Samubai has, therefore, come up in appeal to this Court.

(3.) The sole question, which, therefore, arises-for determination in this appeal is: Whether the mother is entitled to any share in the joint family property at a partition between her sons? The learned trial Judge recognised that under the ordinary Hindu Law, as it stood, a mother was entitled to a share equal to her sons when a parti-tion would take place between them. The learned Judge, however, held that this rule has now become obsolete in view of the provisions of the Hindu Adoptions and Maintenance Act LXXVIII, 1956 (hereinafter referred to as the Act of 1956). The reasoning, which led the learned Judge to come to the conclusion to which he did, was briefly this. He held that by section 4 of the Act of 1956, save as otherwise expressly provided in this very Act, -- any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act ceased to have effect with respect to any matter for which provision was made in this Act; and further that, any other law in force immediately before the commencement of this Act also ceased to apply to Hindus in so far as it was inconsistent with any of the provisions contained in this Act. The learned Judge, therefore, held that any law relating to the maintenance of a mother as under the old Hindu Law, or, according to any usage or custom which might have been in force before must yield to the provisions of the Act of 1956 in so tar as they be inconsistent with the provisions of this Act. To this extent, we do not consider that any fault can be found with the learned Judge, because the provisions of the said Act have been given an over-riding effect by section 4. The learned Judge, however, went on further to hold that the right of a mother to ask for a share for herself at a partition proposed to be made between her sons, which was a right available to her under the pre-existing law, was no longer available to her, because of the over-riding nature and effect of the Act of 1956, and in coming to this conclusion, the learned Judge seems to have been greatly influenced by the consideration that the right of the mother under the Hindu Law to claim a share at an intended partition between the sons was in lieu of her right of maintenance. This seems to have induced him to hold that as the provisions relating to the maintenance of a mother, as contained in the Act of 1956, have been given an over-riding effect by the legislature, the mother's right to claim a share by partition as before had become obsolete.