SHASHI BHUSAN SHAW Vs. HARI NARAIN SHAW

JUDGEMENT

(1.) Ganesh Chandra Shaw, a Hindu, governed by the Bengal School of Law, died in 1685 leaving him surviving eight sons and his widow, Nittyakumari Dassi. The second son, Gour, brought a suit in this Court (No. 73 of 1885) for partition. The suit was referred to arbitration and resulted in an award which was confirmed by the Court on the 18 August 1887. By that award the arbitrator "divided and partitioned the said estate into nine equal parts" and allotted one of such parts or shares to each of the parties, as per schedule G hereto annexed, to be held and enjoyed by them absolutely separately, but as the defendants Hari Narain Shaw, Kauai Lal Shaw, Ranoo Lal Shaw, Rashbehary Shaw and Panna Lal Shaw are infants and they have expressed a desire by their mother and natural guardian, Srimati Nittyakumari Dassi, that they will continue to live together joint is food and estate. I have only declared their shares to be Rs. 9,890-5 10 each, but have not divided the same by metes and bounds (the said Srimati Nittyakumari Dassi being only entitled to a widow's estate in such shares)." The schedule to which reference is made in the passage just quoted shows that of the adult sons of Ganesh, Gour had already received more than his share and Sashi and Nangteswar were now being given certain specific properties and moveables to hold in severalty; whereas to the mother and her five infant sons, taking those six people as one collective whole, certain other assets were allotted without any distribution of such assets between the six so as to answer individual shares, Each of the infant's shares as well as each adult's share is defined by money value in an addendum described as "Explanation of schedule G," which shows the arithmetic of the arbitration. It is not on the facts really contestable that Nittyakumari Dassi and her infant sons did in fact continue to live together as members of one family as contemplated by the a yard, nor that the three elder sons became separate therefrom and from each other in fact as well as in law, Nittyakumari having recently died intestate, two questions now arise upon this position.

(2.) The first question is as to the nature during her lifetime of the right of her sons to take her share among them at her decease. It is contended by the eldest son that until her death there was no more than a mere apes succession is as regards her share, that no son of hers in her lifetime had an interest in the reversion of her share but only a change nr possibility within the meaning of Section 6, sub-clause A, of the Transfer of Property Act, On this point, Counsel for the younger sons tendered an issue whether the share allotted to Srimati Nittyakumari Dassi by the award of the 12 August 1887 was held by her as a Hindu widow or as a Hindu mother, but as Counsel for all parties were agreed that it was held by her as a Hindu mother it became unncessary to frame this issue. In my opinion neither epithet is precise, but there is no room for dispute as to how and why she obtained her share; and the effect of authority binding upon me is, that the share in question is an interest in lieu of the right to maintenance which upon partition amongst sons is carved out of the son's shares and at the death of the mother goes back to and becomes part of the shares out of whish it came, I accept as the law upon this question the decision in Sorolah Dossee V/s. Bhoobun Mohau Neoghy 15 C. 292 : 7 Ind. Doc (N. S.) 779, and I think it inconsistent with the contention that is now put forward on behalf of the eldest son.

(3.) The second question is, whether the infant sons remained united and undivided in spite of the partition suit brought by Gour in 1885. In a case which was one of partition by agreement without reference to any Court, the Privy Council in Balabux V/s. Rukhmabai 30 C. 725 (P. C.) : 30 I. A. 130, 7 C. W. N. 642; Bom. L. R. 469 : 8 Sar. P. C. J. 470 (P. C.) said: "There is no presumption when one coparcener separates from the other, that the latter remain united. In many cases it may be necessary, in order to ascertain the share of the outgoing member, to fix the shares which the other coparceners are or would be entitled to, and in this sense the separation of one may be said to be the separation of all. And their Lordships think that an agreement among the remaining members of a joint family to remain united or to re unite must be proved like any other fact." In the present case the question is one of partition by authority. The mother and the infant sons were impleaded as defendants in a partition suit and when partition was sought against them that arbitrator purported to give effect to their desire, that they will continue to live together joint in food and estate." He made no reference to worship and nothing has been said about it to me either in evidence or in argument. Living together may certainly be consistent with a severance of interest and a joint enjoyment of property may not mean a complete junction of estate, but in this case the evidence, in my opinion, shows an intention to remain joint. The defendants are resisting partition inter se; the Court refuses to thrust it upon them; and in the presence of the elder sons declares this position. The award states the full intent of jointness as theretofore and the conduct of the parties is, in my judgment, consistent with that, It is true that the wording of parts of the award and also the wording of that part of the order confirming the award which appointed a Receiver of the shares of the infants is, from this point of view, not absolutely accurate and precise. It does seem to me, however, that the part of the award which must be given effect to is that part in which the arbitrator expressly declares the intention which be has in making only partial partition and I find it very difficult to suppose that the phrase "they will continue to live together joint in food and estate" could have been need save with the intention of stating that these parties were to remain undivided. I think, therefore, that that was the position created by the award which was confirmed, The elder sons by their Counsel object that the mere issue of a writ by one co-parcener claiming partition effects a separation by itself and that a minor cannot make an agreement to re unite. This, if it be sound, is a contention which carries with it very serious and far reaching consequences---consequences which I do not find to be laid down as law in the text books or decided safes. If the fall logic of this contention be correct, then any single coparcener entitled to partition can always by issuing a writ compel the minor co-parceners into separation from all the others and all the other co-parceners into separation from the minors. Farther, no adult co-parcener in such circumstancess can become divided even if he so desires save upon the terms of bringing about such consequences as between the minor and other parties, and the Court itself would have no way of preventing this.