MT PARBATI DEVI Vs. BANSI DHAR

JUDGEMENT

(1.) This is an appeal under the Letters Patent from a decision of a learned Judge of this Court. There was a joint Hindu family consisting of three brothers, their mother and their sister. The name of the mother is Mt. Parwati Devi and she is the appellant before us. The two surviving brothers are Banwari Lal and Shiam Lal The third brother--now deceased -- was Gluzari Lal. Gulzari Lal instituted a suit for partition of the joint family property against his two brothers, his sister and his mother, and in that suit a man named Bansidhar, who held some of the property under a mortgage executed by Banwari Lal and Shiam Lal, was also impleaded as a defendant. During the pendency of the suit Gulzari Lal--who was unmarried -- died, and on his death his mother, Mt. Parwati Devi, the appellant before us, was at her request substituted as plaintiff to the suit. The trial Court passed a preliminary decree in favour of the appellant, holding that she was entitled to a one-fourth share in the property as the heir of Gulzari Lal and to another one- fourth share as the mother of Banwari Lal, Shiam Lal and Gulzari Lal. We are not concerned in this appeal with what was decreed in favour of the sister. Subsequently, a final decree was passed in the above terms in favour of appellant. Upon an appeal by Bansidhar, the lower appellate Court found that the appellant was not entitled to sue for partition at all, and the learned Judge accordingly allowed the appeal and dismissed the suit. Mt. Parwati Devi thereafter appealed to this Court and the learned Judge who heard the appeal was of opinion that she was entitled to a one-third share in the property as the heir of Gulzari Lal, but that she was not entitled to any further share in her capacity as mother. He accordingly passed a preliminary decree for partition in favour of the appellant in respect to the one-third share of Gulzari Lal.

(2.) The question for our decision is whether in the circumstances the appellant was or was not entitled at partition, in her capacity as mother, to a share equal to the share of a son. In a Hindu family a mother is entitled to maintenance so long as the family remains joint. If the sons effect a partition between themselves, the mother is entitled at the time of partition to a share equal to the share of a son, and this she receives in lieu of maintenance. But she herself is not competent to bring an action for partition of the joint property of the family. Moreover, when a share is allotted to her at partition, anything which she may have already received from her husband as her stridhan will be taken into account in the computation of her share. These principles of Hindu law are, I think, well established. In Jodoonath Dey Sircar V/s. Brojonath Dey Sircar ( 74) 12 Beng. L. R. 385, it was held that, on partition of the family property by the sons after their father's death, the mother is entitled to a share equal to that of a son; but if before partition she has received property from the father, either by gift or by will, amounting to more than a son's share, she is entitled to nothing more on partition, whereas if what she has received is less than a son's share, she is entitled on partition to as much as will make her total share in the property equal to the share of a son. At p. 390 the learned Judge says: 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.

(3.) Thus, according to this authority, what a mother is entitled to have as the result of a partition by the sons is a share equal to the share of a son and nothing in excess thereof. Jodoonath Dey Sircar V/s. Brojonath Dey Sircar ( 74) 12 Beng. L. R. 385 was approved and followed by a Bench of the same Court in Kishori Mohun Ghose V/s. Moni Mohun Ghose ( 86) 12 Cal. 165. In Beti Kuar V/s. Janki Kuar ( 11) 33 All. 118 at p. 121 a Bench of our Court observed: No doubt under the Mitakshara, upon a partition being made by sons after the death of their father, the mother is entitled to a share equal to that of a son. But we are of opinion that she would obtain such share only if an actual partition took place between the sons.