JOGOBONDHU PAL Vs. RAJENDRA NATH CHATTERJEE

JUDGEMENT

(1.) 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 Dabi, and four song, Rajendra Nath, Bidhu Bhusan, Sudhir Kumar and Akshay Kumar. On the 10 August 1917 the plaintiff purchased from Akshay Kumar his right, title and interest in the ancestral properties. On the 8 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 planed in separate possession of a 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 a one-fifth share. The Subordinate Judge has given effect to this contention and has made a decree accordingly, The substantial point whish has been argued on the present appeal is, that the widow is not entitled to a share, inasmuch as 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 Ali in the case of Amrita Lal Mitter V/s. Munich Lal Mullick 27 C. 551 : 4 C. W. N. 764 : 14 Ind. Dec. (n. s.) 362, that, as a Hindu mother is entitled under the law to be maintained out of the joint family property, if anything is done affiliating that right, as, for instance, by the sale of any particular share by any of her sons, her right comes into existence. The position of a purchaser from a son is exactly that of a son himself; he has the same rights and takes it subject to the name 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 rule has been formulated. Apart from this, it is plain that the view adopted by Mr. Justine Ameer Ali 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 Chunder V/s. Fulkumari Dassi 27 C. 77 : 4 C.W.N. 254 : 14 Ind. Dec. (n. s.) 51. Maclean, C. J., observed, no doubt with reference to an entirely different set of circumstance, 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 hands it may pass, a right convertible in the event of a partition into a right to a share equal to that of eons, 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 he 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, so sharers with the vendor at the date of the alienation) as nay arise under the Hindu Law upon partition. A similar view had been adopted in 1680 by a Full Bench of the Allahabad High Court in Bilaco v. Dina Nath 3 A, 88 : 5 Ind. Jur. 489 : 2 Ind. Dec. (n. s.) 61 (F. B.) 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 on auction-purchaser, at the Bale 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 aright 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 ripen or crystallise, if and when the partition takes place. (Sir Francis 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 devise of an alienation, by one of the sons, of his share in the ancestral estate. The same doctrine was substantially recognised by Colvile, C. J., in 1855 in the case of Sreemutty Sooreemoney Dorsee v. Denobundoo Mullick (1885) 1 Boul 223 at p 233: 3 Ind. Dec. (o. s.) 163; Reversed on Appeal 6 M. I. A. 52 at p 539 : 1 Ind. ur (n. s.) 37; W. R. P. C. 11(sic) Suth. P. C. J. 291 : 1 Sar P. C. J. 583, 19 E. R. 188, 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, tan take only his rights as they stand, including of course the right to call for a partition. The view we take is not affected by the decision in Barahi Debt V/s. Debkamini Debi 20 C. 682; C. Ind. Dec. (n. s.) 460 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 lieu of or by way of provision for her maintenance, [Sorolah Dossee V/s. Bhoobun Mohun Neoghy 15 C 29 : 17 Ind. Dec (n. s.) 779, Remangini Dasi V/s. Kedarnath Kundu 16 I. A 15 : 6 C. 758 : 3 Ind. Jur. 210, 5 Sar, P. C. J. 874 : 8 Ind. Dec. (n. s), 502, 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.

(3.) It has been contended, however, that the decision in Amrita Lal Mitter V/s. Manick Lal Mallick (1) is opposed to the test of the Dayabhaga, which provides as follows, in Chapter III, section 2, paragraph 29: "When partition is made by brothers of the whole blood after the demise of the father, an equal share must be given to the mother; for the text (of Vrihaspati) expressed, the mother should be made an equal sharer". This passage has been treated as authority for what must now he deemed nettled his, namely, that the mother's right to claim a share arises only when her sons some to a partition, in other words, that she cannot enforce her claim to share so long as her sons remain joint and do not ask for partition; Ganesh Dutt V/s. Jewach Thakoorain 31 I. A. 10 at p. 15 : 31 C. 262 : 14 M. L. T. 8 : 8 C. W. N. 146 : 8 Sar. P. C. J. 575 : 6 Bom. L. R. 1 (P. C.). Now it has been argued by the appellant that under this text of the Dayabhaga, strictly construed, the mother is entitled to a share, only when her sons make a partition, and that, consegnently, if a partition takes place at tie instance of the purchaser of the share of a son, the mother cannot obtain a share. This mode of interpretation is manifestly fallacious and proves too much; for it may as well be maintained that the purchaser of a share of a son cannot at all maintain a suit for partition, inasmuch as such a suit is not explicitly authorised by the text of the Dayabhaga. The truth is, that the author of the Dayabhaga bad before him the problem of the partition of the family estate at the instance of a member thereof; be 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 Ballad Dayabhaga or partition of heritage, and must consequently be regarded as foreign to the proper scope of the treatise of Jimutavabana, When partition of the family properties is claimed in such circumstances by a stranger to the family, the question which arise must accordingly be determined by reference to general principles not inconsistent with those formulated for the case of partition enforced by a so parcener 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, paragraph 23, 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 nonexistent 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 tons, 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 if 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 a share equal to that of a son to the co-parcenary 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.