BABUNA KUNWAR Vs. JAGAT NARAIN SINGH

JUDGEMENT

(1.) One Bhagirathi Singh, a Hindu governed by the Mitakshara law, died, leaving him surviving a widow, Mt. Babuna Kunwar, a son, Jagat Narain and another son, since deceased, Jai Gobind, the father of Sham Narain. The family possessed joint property. By an award, obtained at the instance of Jagat Narain and Sham Narain, the family property was divided equally between the uncle and nephew. Babuna Kunwar, thereupon, asked for a share but was refused. She then instituted the suit, out of which this appeal has arisen, for the separation of a third share for her. Sham Narain alone defended the suit. His case was that the plaintiff was not entitled to any share under the shastras and that she was possessed of considerable property being her stridhan, and, therefore, she did not require any other property for her maintenance. The Court below held that the plaintiff had no property which could support her and that, in the circumstances of the case, the plaintiff could not get a share and that she must look to her son, Jagat Narain, for her support.

(2.) The plaintiff has appealed. No attempt has been made, on behalf of Sham Narain, to support the decree of the Court below on the ground that the plaintiff possessed property sufficient for her maintenance. The only question which we have to decide in this appeal is whether in the case of a partition between a son and a grandson of a female the latter is entitled to a share, the grandson being the son of a son who is other than the surviving one.

(3.) The learned Subordinate Judge was of opinion that the present case was governed by the Full Bench case of Sheo Narain V/s. Janki [1912] 34 All. 505. In that case the facts were materially different, inasmuch as the partition was between the female claimant's son and his own sons. The learned Judges pointed out that there were two texts of the sage Yagyavalka relied upon by the author of Mitakshara and these considered only two cases of partition. One case was when the father was alive and the partition proceeded in his life-time, and the other case was when he was dead and the descendants proceeded to divide the property among themselves. In the former case, they pointed out, the "father's wife" took, as such, a share. In the latter case, the "mother" took, as such, a share. It was further stated that Vinjyaneswara did not contemplate the case of a partition between a father and his own sons, and did not provide for a share for the father's mother in such a case. The case before us is, clearly, not the same as was submitted for the consideration of the Full Bench. Here, as already stated, the partition is between a grandson and paternal uncle of the grandson. The case falls within the four corners of the text which contemplates a partition "on the death of the father." Colebrook in his translation of the Mitakshara, translate the next of Yagyavalka bearing on the point in the following language: Of heirs dividing after the death of the father let the mother also take an equal share.