DURGA DUTT Vs. MUSAMMAT GITA

JUDGEMENT

(1.) One Biddya Ram died possessed of a 20 biswas mahal in mouza Sarah Basaulia and also a house and two enclosures, situated in the same village. He died about 30 years ago leaving two widows, namely, Mussammat Gita and Mussammat Mulo, who thereupon became entitled to his property to the extent of Hindu widows estates. Musammat Mulo on the 7th of February 1908 executed a deed of gift of her entire share in the property in favour of the plaintiffs. The plaintiffs applied in the Revenue Court for mutation of names in respect of the zemindari property and also sought delivery of possession of a share in the house by partition. Musammat Gita objected to the mutation applied for and refused to deliver up possession of any portion of the house or to allow partition of it. It is stated and not denied that Mussammat Gita also executed a deed of gift in favour of the defendant Sri Ram not merely of her share of the property but of the entire zemindari property and the house and its enclosures.

(2.) The suit out of which this appeal has arisen was instituted by the plaintiffs for the purposes of obtaining a declaration that under the deed of gift to them of the 7th of February 1908 they are entitled to 10 biswas out of the 20 biswas mahal in question and of having a partition of the house and the enclosures.

(3.) The Court of first instance gave a decree to the plaintiffs but upon appeal the learned District Judge set aside the decree of the Court below and dismissed the plaintiffs claim, on the ground that Musammat Mulo had no authority to part with her life-interest in any portion of the property without the consent of her co- widow. The learned Judge in his judgment observes as follows: The ruling in the case of Ram Piyari v. Mulchand 7 A. 114 is supported by the authority of the Privy Council and has not so far been overruled. It may appear strange that a co-widow cannot part with her life-interest in a property held jointly with other co-widows, but such is the enunciation of the law. I do- not believe that Mr. Mayne is correct in stating as a general rule of law that it has been held that a widow can alienate her life-interest as against her, co-widows just as she can against her reversioners. Mr. Mayne s statement of the law on the subject is to be found in paragraph 554 of his work on Hindu Law, at page 752, VII Edition. It runs as follows: Where several widows hold an estate jointly, or where one holds as manager for the others, each has a right to her proportionate share of the produce of the property, and of the benefits derivable from its enjoyment. And the widows may be placed in possession of separate portions of the property either by agreement among themselves, or by decree of Court, where, from the nature of the property, or from the conduct of the co-widows, such a separate possession appears to be the only effectual mode of securing to each the full enjoyment of her rights. Bat no partition can be effected between them, whether by consent or by adverse decree, which would convert the joint estate into an estate in severalty, and put an end to the right of survivorship.