RAMLU NAGANNA TUMMURWAR Vs. VITHAL NAGANNA TUMMURWAR

JUDGEMENT

(1.) THIS is an appeal from the judgment and decree of the Additional District Judge, Chanda, in a suit for partition and separate possession of property of a joint Hindu family. The plaintiff (now respondent 1) Vithal is the son of one Naganna Tumurwar Komti, and the defendants (who were originally two) viz. (1) Mt. Shiwoo Bai and (2) Ramloo are the widow of Naganna and the step-brother of Vithal respectively. During the course of the trial one Mt. Saraswati Bai, the widow of Laxman, a deceased brother of Vithal, was added as a party but as she only wants maintenance, this appeal involves no claim or relief against her.

(2.) THE learned Additional District Judge framed 30 issues embracing all the controversies in the suit but in civil Revision No. 33 of 1940 arising out of these proceedings Pollock J. pointed out the desirability of passing a preliminary decree under Order 20, Rule 18(2), Civil P.C., and leaving the ascertainment and partition of the joint family assets to what are popularly called 'final decree proceedings'. After this parties also made an application to the Court, requesting that only the first nine issues be tried and decided, since they desired to refer the remaining dispute to an arbitration.

(3.) NOW the position of the mother is quite clear in so far as the Benaras School is concerned. She is not entitled to claim a partition on her own account but in a partition between the sons, she is entitled to a share. Such a share is allowed by texts in the Smritis and the text in Yajnavalkya runs as follows: "Of heirs dividing after the death of the father, let the mother also take an equal share:" Yajnavalkya ii, 123, 124. The Commentary of Vijnaneswara on this text is: Of heirs making a partition after the decease of the father, the mother shall take share equal to that of her son provided no stridhana has been given to her. But if any had been received by her, she is entitled to half a share, as will be explained:" Mitakshara Chap. I, Section 7 paras 1 and 2.